Stone v. State of California

106 Cal. App. 3d 924, 165 Cal. Rptr. 339, 1980 Cal. App. LEXIS 1926

• Court: California Court of Appeal
• Decided: May 23, 1980
• Docket: Civ. 18317
• Status: Published

Opinions

Opinion

BLEASE, J.

Plaintiffs, James T. Stone, Joyce Stone and James Jeffery Stone by his guardian ad litem James T. Stone, appeal from the summary judgment granted in favor of defendant State of California.

We consider and reject plaintiffs’ contention that liability for injuries occurring to plaintiffs at the Cal Expo fairgrounds may be predicated on the theory of a dangerous condition of property and hold that the State of California is immune from suit under the provisions of the Government Code precluding liability for failure to provide sufficient police protection service.

I

The facts are established by admissions and by documents submitted in support of the state’s motion for summary judgment.¹

The plaintiffs, together with friends, attended the Cal Expo fairgrounds on September 9, 1975. They agreed to meet at the main gate prior to returning home. Near the gate the plaintiffs were overrun by a gang of youths who were shouting and hitting persons. During the melee Joyce Stone was attacked, her purse was taken and the plaintiffs were beaten and injured.

By amendment to the complaint, the plaintiffs alleged and, by a failure to deny, the defendant admitted, the following: “‘At said time and place, defendants, and each of them, so negligently owned, maintained, controlled, managed and operated said premises, and the fixtures and chattels thereon, and so negligently failed to provide adequate security measures as to expose persons on said premises, including the plaintiffs, and each of them, to danger and injury. Defendant, State Of California, prior to September 9, 1975, had made a policy decision not to use State Police for security but to use persons acting in a private capacity to provide security, thus assuming a duty to provide security. The persons hired by the State to provide said security failed to use normal care while exercising their functions. [11] As a direct and proximate result of the negligence of defendants, and each of them, plaintiffs, and each of them, were assaulted, battered and had their personal property converted.”

II

Plaintiffs attempt to establish liability upon the theory that their injuries were caused by a dangerous condition of property, a statutory ground of public entity liability. (Gov. Code, § 835.) They claim that a “governmental entity in possession of and operating property open to the public for business purposes has a duty to restrain the dangerous conduct of third persons or if the dangerous conduct of third persons cannot be adequately controlled then the possessor does have a duty to warn invitees of this danger.” The admitted facts show that it is the failure “to provide adequate security measures” at Cal Expo, causing plaintiffs’ injuries, which is at issue and that defendant’s duty to provide security, if any, arises from the employment of “persons acting in a private capacity to provide security.”

Public entity liability for tort rests upon statute and is subject to statutory immunities. (Gov. Code, § 815.) Although plaintiffs do not burden the court with the statutory or case authority, it is apparent that their claims rise or fall upon Government Code section 835.²

Government Code section 835³ makes the state liable for injuries proximately caused by a dangerous condition of property. Section 830⁴ defines property as “real or personal property.”

Plaintiffs mistake the import of Government Code section 835; it provides for public liability only for dangerous conditions of the property itself.

In Sykes v. County of Marin (1974) 43 Cal.App.3d 158, 161 [117 Cal.Rptr. 466], the court held that the county’s failure adequately to light the parking lot of a school did not constitute a dangerous and defective condition of the property and that the harm to plaintiffs was caused by the intervening criminal acts of third parties. (Id., at p. 164.)

In Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 490 [135 Cal.Rptr. 296], the court, faced with similar facts, distinguished Sykes as involving a failure to “establish any causal connection between the lack of lighting.. and the injuries received.” It reversed and remanded for a determination whether the lack of lighting was a concurrent proximate cause, together with the third party conduct, of the injuries.

The plaintiffs show no (concurrent) cause of their injuries rooted in the physical condition of Cal Expo. Rather, their injuries were caused by a negligent failure “to provide adequate security forces.”

The facts before us are similar to those in Hayes v. State of California (1974) 11 Cal.3d 469 [113 Cal.Rptr. 599, 521 P.2d 855], in which two young men were attacked and beaten by unknown persons on a beach on the campus of the University of California at Santa Barbara. The court found that liability for the injury caused by a dangerous condition of the property may be imposed when an ureasonable risk of harm is created by a combination of defect in the property and acts of third parties but that the conduct of third parties is not itself a dangerous condition. {Id., at p. 472.) The court concluded the government had no duty to warn against possible criminal conduct. (Id., at pp. 472-473.)

Plaintiffs have failed to make a case for liability under Government Code section 835.

III

Plaintiffs’ claims rest exclusively upon a failure to provide sufficient police protection, a failure which has been specifically immunized from liability by Government Code section 845.⁵

“The statutory scheme employed makes it clear that failure to provide adequate police protection will not result in governmental liability (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803...), nor will a public entity be liable for failure to arrest a person who is violating the law. (Law Revision comment to § 821; Tomlinson v. Pierce (1960) 178 Cal.App.2d 112...; Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d 67....) The statutory scheme shows legislative intent to immunize the police function from tort liability from the inception of its exercise to the point of arrest, regardless of whether the action be labeled ‘discretionary’ or ‘ministerial.’” (Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 592-593 [114 Cal.Rptr. 332]; Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 8-9 [120 Cal.Rptr. 5]; see Slapin v. Los Angeles International Airport, supra, 65 Cal.App.3d 484, 487.)⁶

A limited exception to this immunity has been found in cases involving discretionary acts in which a special relationship between the plaintiff and the public employee justified reliance by the plaintiff on the public employee’s statement or promise. (Antique Arts Corp. v. City of Torrance, supra, 39 Cal.App.3d at p. 593; see Hartzler v. City of San Jose, supra, 46 Cal.App.3d at p. 9.) “The common theme running through these decisions is the voluntary assumption by the public entity or official of a duty toward the injured party. Even though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual’s reliance, it is then held to the same standard of care as a private person or organization.” (Hartzler, supra, at p. 10.)⁷ This court has declined to follow the exception. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698 [141 Cal.Rptr. 189].)

Moreover, the exception is not triggered by defendant’s decision not to use the California State Police. No duty toward plaintiffs arises by the mere decision to use any particular persons in the performance of the police function. Section 845 immunizes the state from any failure to provide “sufficient police protection service,” without regard to the persons performing the service. Since only the adequacy of the service has been put in issue by the plaintiffs, section 845 expressly applies to defeat their claims.

IV

Plaintiffs assert that even if Government Code section 845 does hold defendant immune from tort liability to plaintiffs, the section nonetheless denies them their right to equal protection of the laws.⁸

Although as plaintiffs note no case has held specifically in regard to section 845 that it is constitutional, nonetheless the entire California Tort Claims Act of 1963, which draws similar distinctions between classes of persons throughout, has been held to be constitutional. Thus, we conclude on the strength of these cases that section 845 is constitutional.

In Datil v. City of Los Angeles (1968) 263 Cal.App.2d 655 [69 Cal.Rptr. 788], the court rejected the plaintiffs’ contention that the Tort Claims Act violated due process by granting an immunity from liability for torts to subordinate public entitles, which would result in unequal protection of the laws. The court noted that in all cases which had challenged the act to date, all had upheld its constitutionality. {Id., at pp. 660-661.)

Other cases dealing with procedural requirements of the act have also examined its constitutionality and determined that it does not deny to claimants the equal protection of the laws. (Roberts v. State of California (1974) 39 Cal.App.3d 844, 848-850 [114 Cal.Rptr. 518]; Stanley v. City and County of San Francisco (1975) 48 Cal.App.3d 575, 580-582 [121 Cal.Rptr. 842]; see Whitfield v. Roth (1974) 10 Cal.3d 874, 889, fn. 20 [112 Cal.Rptr. 540, 519 P.2d 588].)

We acknowledge the conviction with which a contrary view is advanced in the dissenting opinion but, despite our colleague’s diligence in ferreting out snippets of hope in isolated bits of case language, a substantial equal protection attack upon sovereign immunity has yet to be mounted.

The Tort Claims Act and Government Code section 845 do not deny plaintiffs the equal protection of the laws.

The judgment is affirmed.

Puglia, P. J., concurred.

1 Plaintiffs assert that the motion for summary judgment was defective for failure to comply with the notice and affidavit requirements of Code of Civil Procedure section 437c. They also assert .other procedural faults. However, as permitted by section 437c, the motion is supported by answers to interrogatories, admissions and depositions. Plaintiffs interposed no objection to the procedure below and point to no issue of triable fact relevant to the resolution of the issue tendered on appeal. Accordingly, the assertions are not well taken.

2 Since plaintiffs have characterized the security function as performed by “persons acting in a private capacity,” it is clear that no general tort liability for the acts of public employees is claimed under Government Code section 815.2.

3 Government Code section 835 provides: “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: [11] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [11] (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."

4 Government Code section 830 defines terms used in section 835:“(a) ‘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.

“(b) ‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.

“(c) ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”

5 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 Law Revision Commission comment to the section provides further explanation of its intent: “This section grants a general immunity for failure to provide enough police protection. Whether police protection should be provided at all, and the extent to which it should be provided, are political decisions which are committed to the policy-making officials of government. To permit review of these decisions by judges and juries would remove the ultimate decision-making authority from those politically responsible for making the decision.”

6 Government Code section. 845.8, dealing with liability for injuries caused by prisoners, parolees or arrestees, has been similarly interpreted in County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 485 [105 Cal.Rptr. 374, 503 P.2d 1382]. (See Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9 [120 Cal.Rptr. 5].)

7 Plaintiffs’ reliance on Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 444-447 [131 Cal..Rptr. 14, 551 P.2d 334, 83 A.L.RJd 1166], is misplaced since that case held that the police defendants had no special relationship with the patient, and were immune for failing to detain him by virtue of Welfare and Institutions Code section 5154. {Id., at pp. 444, 449-459.)

8 It is necessary to note that we do not in this case deal with a claim that plaintiffs were denied the equal protection of the laws because they were the subject of racial discrimination. They were not denied police protection which was available to persons of another race. (See ten Broek, Equal Under Law (1965 ed.).)