Connelly v. State of California

3 Cal. App. 3d 744, 84 Cal. Rptr. 257, 1970 Cal. App. LEXIS 1168

• Court: California Court of Appeal
• Decided: January 21, 1970
• Docket: Civ. 1057
• Status: Published

Opinions

Opinion

STONE, P. J.

Appellant owned and operated three marinas, two on the Sacramento County side of the Sacramento River and one on the Yolo County side, located near the confluence of the Sacramento and American Rivers. During the latter part of December 1964 heavy rains in Northern California caused the Sacramento River to rise to unusual heights. For several days prior to December 22, appellant periodically telephoned the State Department of Water Resources in Sacramento to inquire about any anticipated change in the level of the swollen river. Appellant alleges it is the function of this office to supply information about the height and anticipated rise, if any, in the water level of the river, and that people along the river rely upon the information given them by the department.

Appellant last called the department approximately 4 p.m. on December 22, 1964, at which time he was informed the river was expected to rise to a maximum of 24 feet. Relying on this information, appellant set his marina docks so they would float at a maximum river height of 26 feet; within four hours the river rose to 29 feet. It is alleged that by this time it was dark and appellant was unable to do anything to save his docks and apartment structures from extensive damage as the river remained at flood stage of 29 feet for two weeks.

Appellant filed a claim for damages with the State Board of Control, as provided in Government Code section 910 et seq. He alleged the officers, servants and employees of the Department of Water Resources negligently provided him with inaccurate information as to the anticipated rise in the Sacramento River. The claim was denied, and thereafter appellant commenced this action. His first and fourth causes of action are predicated upon alleged negligence in the dissemination of inaccurate river height forecasts. He also pleaded second, third and fifth causes of action alleging negligent release of water from state-operated dams.

Respondents’ demurrer to each of the five causes of action alleged in appellant’s second amended complaint was sustained without leave to amend, and judgment was entered pursuant thereto.

For reasons hereinafter set forth, we conclude that the demurrer should not have been sustained without leave to amend as to the first and fourth causes of action predicated upon erroneous dissemination of information, but was properly sustained as to the other causes of action which were unsupported by a precedent claim as required by the Government Code.

Although the principal issue in the case is whether respondent State of California and its respondent employees are clothed with governmental immunity, we are confronted with the threshold question whether appellant has stated a cause of action under the general laws of negligence. First, respondents asserts that a recipient of a weather forecast cannot, as a reasonable person, rely upon its accurateness because it is common knowledge that weather forecasts of future conditions are not statements of fact. It is understood that such predictions are subject to the vagaries of nature and that the caprice of the elements occasionally cause a weatherman’s predictions to go awry.

We cannot argue with the reason or the logic of this proposition, but it is not applicable to the pleadings before us. Appellant does not rest his allegations of negligence upon the mere fact the forecast turned out to be wrong; he has pleaded specific acts of negligence in the gathering and evaluating of known facts. In the fourth cause of action he alleges that it was the duty of named defendants, employees of the State of California, to manage, control or operate the Department of Water Resources Office of the State of California in Sacramento, whose duty it is “to take reasonable efforts to stay informed of all sources of the increase of the water level, and to stay currently informed of the river height, and to use reasonable care in estimating the potential water height, and to disseminate accurate information about the river.” Again, appellant alleges that “he is informed and believes and thereon alleges that there was a breakdown of some sort in the operation of the office and its river depth measuring stations, including the possibility that there was a serious miscalculation by one of the employees in the office and those in charge of the office negligently failed to detect this miscalculation. . . . that each of the defendants above named had actual knowledge of the breakdown or had they exercised due. care, should have had knowledge of this breakdown in time to prevent the dissemination of inaccurate information as herein alleged.”

Respondents’ other argument in regard to pleading negligence is that forecasts of this character are a public service for the benefit of the public generally and therefore appellant cannot claim a duty owed him and, accordingly, he cannot claim a breach of a duty. The facts alleged, however, negate this argument, as appellant pleaded not only that businessmen along the river use and rely on flood forecast information but, additionally, that on December 22, 1964, he “telephoned the office to determine the maximum height to which the river would rise; plaintiff identified himself as a businessman with a great deal at stake in a proper estimate in the river height.” He further alleged that in reliance upon this information he secured his marina docks so they would float at a water level two feet above the maximum forecast by appellants.

Thus appellant has pleaded facts which take him out of the realm of an amorphous public receiving general information, and placed himself in the position of a businessman by identifying himself as such and making personal inquiry and relying upon the information given him. It may well be that if given the opportunity appellant will be unable to prove any of the facts alleged, to the satisfaction of a court, but on this appeal from a judgment entered pursuant to demurrer to the complaint sustained without leave to amend, we accept the allegations of the complaint as factually correct. (Stigall v. City of Taft, 58 Cal.2d 565, 567 [27 Cal.Rptr. 441, 375 P.2d 289].) Moreover, it must be owned that the pleadings of duty and reliance may well be subject to special demurrer, but under the well established rules of pleading, a demurrer is not properly sustained without leave to amend upon the ground of failure to state a cause of action in negligence, unless it is clear that the plaintiff cannot amend his complaint to state a cause of action. (Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713 [128 P.2d 522, 141 A.L.R. 1358]; Katenkamp v. Union Realty Co., 6 Cal.2d 765, 769 [59 P.2d 473]; 2 Witkin, Cal. Procedure (1954) Pleading, § 505, p. 1496.) The record, here, does not reflect that appellant cannot amend his complaint to allege facts sufficient to state a cause of action in negligence.

We turn to the question of governmental immunity. Appellant contends he has stated a cause of action under Government Code section 820, which provides in part that: “(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”

Respondents counter that the activities upon which the complaint is predicated involve the exercise of discretion and are within the governmental immunity provided by section 820.2, which reads: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” The Legislative Committee Comment tells us this section restates the pre-existing California law. (Note to Gov. Code, § 820.2, West’s Annotated Cal. Codes.) However, prior to the enactment of the 1963 California Tort Claims Act, activities deemed discretionary and clothed with immunity are not clearly defined. In fact, the decisions filed subsequent to the act, up to Johnson v. California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], follow no definitive criterion and rest largely upon facts peculiar to the particular case. Generally speaking, courts have used two approaches to the question of immunity, one of which finds immunity where to impose liability would create the “danger that public employees will be insufficiently zealous in their official duties,” a theory elaborated by Judge Learned Hand. The other purports to distinguish a discretionary act within the ambit of section 820.2 from an excluded ministerial act, by a refined, sometimes subtle if not tenuous, analysis of the characteristics of the performance.

The Supreme Court, in Johnson v. California, supra, took a fresh approach to the question by rejecting the Judge Hand postulate that public officials will be insufficiently zealous unless immunity attaches to their discretionary acts. The court said it was motivated largely by the fact the 1963 Tort Claims Act, Government Code section 825.6, requires an employee to “indemnify the public entity” only in instances where the employee acted outside the scope of his employment or “acted with actual fraud, corruption, or malice.” (P. 791.) The court also rejected the reasoning of cases purporting to distinguish between discretionary acts and ministerial acts, upon the ground this is an impractical and unrealistic exercise in semantics. (P. 787.) After discarding the semantic and zealous-perform.ance criteria for determining when an act involves an exercise of discretion and immunity attaches, the Supreme Court formulated a new criterion, new insofar as California is concerned, for determining when a governmental activity is within the ambit of discretion as delineated in section 820.2. The court used the doctrine of separation of powers as scaffolding to support its new “touchstone” of “judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government.” (P. 793.) Leaning heavily upon the language of Dalehite v. United States (1953) 346 U.S. 15 [97 L.Ed. 1427, 73 S.Ct. 956], the court equated the language “discretion vested in him” -(§ 820.2) with “basic policy decisions.” In an exposition of the term “policy making” the court said the distinction is “sometimes described as that between the ‘planning’ and ‘operational’ levels of decision-making.” The court speaks of “areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.” (P. 794.)

Respondent argues that the rule of Johnson should not be construed to cover the activities here involved because the magnitude of the risk might cause abandonment of this and similar beneficial public services. The . argument is an extension or inversion of the Judge Hand postulate, simply substituting the public entity for the employee. The upshot of the argument is that the public entity may eliminate the public service rather than risk the disastrous consequences of governmental liability arising from a negligently prepared forecast.

Our holding, of course, is limited to the pleadings peculiar to this case, and we doubt that it portends ramifications as ominous as respondents foresee. In any event, from the cases cited by the Supreme Court in Johnson to illustrate application of the criteria,¹ it seems clear that the pleadings before us come within the rationale of that case. Thus we hold that the determination to issue flood forecasts is a policy-making function, a discretionary activity within the scope of governmental immunity, while gathering, evaluating and disseminating flood forecast information are administrative or ministerial activities outside the scope of governmental immunity. Consequently the question whether these unprotected acts were performed negligently must be determined from the facts of the case.

The answer to respondents’ public interest argument does not lie in an attempt by this reviewing court to evade the rule of Johnson by an attenuated definition of “discretion” designed to subsume administrative duties of this character that carry out policy decisions. In the past, when public interest justified insulating a governmental activity with immunity, the Legislature provided it by statute. For example, the Legislature insulated governmental entities against liability resulting from the ministeral act of a government employee in the area of fire protection (Gov. Code, §§ 850.2, 850.4). In Heieck & Moran v. City of Modesto, 64 Cal.2d 229 [49 Cal.Rptr. 377, 411 P.2d 105], a loss was suffered when firemen were unable to prevent the spread of fire to plaintiff’s property because city employees had closed a valve in the water main and there was no water in the fire hydrants; the valve had been closed to permit relocation of certain water mains and, although the relocation had been completed at least a month before the date of the fire, the valve had not been turned on. Palpably this was a negligent ministerial act, but the Supreme Court held Government Code sections 850.2 and 850.4 immunized the city from liability.

The Legislature has also provided immunity to certain public employees exercising ministerial functions, such as a public employee exercising due care in the execution or enforcement of any law (§ 820.4); a public employee who issues, denies, suspends or revokes, or fails to so act, in regard to any permit, license, certificate, approval, order or similar authorization (§ 821.2); a public employee who fails to malee an inspection, or makes an inadequate or negligent inspection of any property (§ 821.4); a public employee instituting or prosecuting any judicial or administrative proceeding within the scope of his employment (§821.6); a public employee entering upon property where such entry is expressly or impliedly authorized by law (§821.8); a public employee where money is stolen from his official custody unless the loss is sustained as the result of his own negligent or wrongful act or omission (§ 822); a public employee acting in the scope of his employment where an injury is caused by his misrepresentation, whether or not such representation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice (§ 822.2).

There remains the argument of respondents and amici curiae that the complaint alleges negligent misrepresentation within the ambit of Government Code section 818.8, which provides: “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”

In support of the argument, a number of cases from other jurisdictions, particularly federal court cases, are cited. However much in point the citations may be, they are not applicable here in the face of the Supreme Court’s definitive analysis and exposition of the term “misrepresentation” appearing in Johnson v. California, supra, 69 Cal.2d at page 800: “In short, ‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs, applies to interferences with financial or commercial interest. The Legislature designed section 818.8 to exempt the governmental entity from this type of liability.” (Italics added.)

Applying the foregoing criteria to the facts of this case, we find that although appellant suffered a commercial loss in the sense that his business installations were damaged, the loss did not result from a commercial transaction between him and the state, nor from the state’s interference with his commercial transactions. The complaint alleges a service gratuitously performed by the state in a negligent manner, resulting in physical damage to property. As there is no allegation of a tortious interference by the state with appellant’s commercial activities within the rationale of Johnson, we conclude that section 818.8 does not apply to this case.

To summarize, since there is nothing in the pleadings to indicate that the state employees charged with negligence were engaged in policy or decision making, or that their activities were covered by a specific immunity statute, the order sustaining demurrer without leave to amend

as to the first and fourth causes of action, predicated upon negligent dissemination of river height forecasts, must be reversed.

The second, third and fifth causes of action, predicated upon alleged negligent release of water from state-operated dams, present a different and additional problem. Appellant’s claim presented to the State Board of Control alleged that his damages resulted from erroneous information regarding the anticipated rise in the level of the Sacramento River. No mention is made of negligence in the operation of the dams. Hence, in the light of the requirement (Gov. Code, § 910 et seq.) that an action of this character be preceded by a proper claim, the demurrer as to these causes of action was properly sustained without leave to amend.

The judgment is reversed insofar as the first and fourth causes of action are concerned, and the case is remanded to the trial court with instructions to permit appellant to amend his first and fourth causes of action if he is so disposed. The judgment is affirmed as to the second, third and fifth causes of action.

Gargano, J., concurred.

1 In Johnson v. California, 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], the following cases are analyzed at pages 796-797: “. . . United States v. Washington (9th Cir. 1965) 351 F.2d 913, 916 (decision as to where to place wire across canyon was assumed to be discretionary, but failure to warn pilot was not); United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379, 397-398, cert. dism. sub. nom. United Air Lines, Inc. v. United States (1964) 379 U.S. 951 [13 L.Ed.2d 549, 85 S.Ct. 452] (decision to conduct air flights was discretionary, but failure to warn commercial airline was not); United States v. White (9th Cir. 1954) 211 F.2d 79, 82 (decision not to ‘dedud’ army firing range assumed to be discretionary, but telling person about to go onto range that it was safe not discretionary); Costley v. United States (5th Cir. 1950) 181 F.2d 723, 724-725 (discretionary function to admit patient to hospital, but no immunity for treatment thereafter); Bulloch v. United States (D. Utah 1955) 133 F.Supp. 885, 889 (decision as to how and when and in what manner to conduct nuclear tests was discretionary, but failure to give proper notice was not); Hernandez v. United States (D. Hawaii 1953) 112 F.Supp. 369, 371 (discretionary to erect road block, but failure to warn of the hazard created was not); Worley v. United States (D. Ore. 1952) 119 F.Supp. 719, 721 (decision to use coyote traps assumed to be but failure is

“These cited cases establish the principle that, although a basic policy decision (such as standards fpr parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.”