Opinion
Rehearing Granted Feb. 20, 1970.
Opinion on pages 1041 to 1044 omitted
REHEARING GRANTED
Subsequent opinion was not certified for publication.
[83 Cal.Rptr. 878]Magana, Olney, Levy & Cathcart and Richard Devirian, Los Angeles, for plaintiffs and appellants.
Harry S. Fenton, Chief Counsel, R. B. Pegram, Deputy Chief Counsel, Joseph A. Montoya, Richard L. Franck, George W. Clements, Elliott D. Olson, Los Angeles, for defendant and respondent.
COBEY, Associate Justice.
Plaintiffs, Melvin and Robert Retzlaff, a father and his minor son and ward, appeal from a summary judgment in favor of the defendant, State of California, granted on 'the statutory ground that the action has no merit and that no triable issue of fact is presented.'
This action is one for damages for severe personal injuries sustained by Robert, then 12 years old, when he fell down a State-built embankment on State property running parallel and adjacent to the Ventura Freeway. The accident occurred at approximately 3:30 a. m. Because of tire trouble Melvin had just stopped the family car containing the plaintiffs, Mrs. Retzlaff and Robert's sister, Mary, on a dirt shoulder of the freeway, approximately 10 to 13 feet wide. Robert, who had been sound asleep, stepped from the right-hand door of the car to assist his father in changing the tire. There was no area upon which he could stand and he plunged unexpectedly down the embankment.
In its memorandum in support of its motion for summary judgment, the State took the position that the only liability on its part claimed by the plaintiffs in this case was that created by Government Code section 835(a) and that such statutory liability could not exist as a matter of law because of the interposition of the design immunity granted by Government Code section 830.6 as factually developed in the declarations of the district design engineer and in the stipulation of fact. Plaintiffs do not concede the correctness of this position. Their claim of the State's liability for Robert's [83 Cal.Rptr. 879]injuries apparently rests upon section 835(b) as well as upon section 835(a). They assert, therefore, that it was improper to grant a total summary judgment in favor of the State solely on the basis of section 830.6.
Section 830.6 reads and has always read:
Section 835 reads and has always read:
We agree. The case was before the trial court on, among other things, plaintiffs' first amended complaint. In this complaint plaintiffs alleged that the State 'carelessly and negligently designed, constructed, inspected, maintained and controlled' the freeway at the point of the accident in that at this point there was immediately adjacent to the shoulder of the freeway an unguarded and unsigned 'precipitous grade' which was 'a dangerous condition of public property.' These allegations constitute an insufficient pleading of the statutory cause of action created by section 835 (see Feingold v. City of Los Angeles, 254 Cal.App.2d 622, 625, 62 Cal.Rptr. 396, hear. den.), but the judgment of dismissal before us is not based upon either a general demurrer or upon the pleadings. It is not the purpose of summary judgment proceedings to test the sufficiency of the pleadings. (See Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 560, 122 P.2d 264.) This is assumed. (2 Witkin, Cal. Procedure (1954) Proceedings Without Trial, § 76(c), p. 1712.)
On the date of the accident guide markers, that is, rectangular white signs, 2 feet by 8 inches in size, bearing three yellow reflectors, were located at intervals of less than 200 feet along the embankment.
Since section 835 explicitly provides alternative bases of liability in its two subsections and only that of section 835(a) involves the negligent or wrongful creation of a dangerous condition of public property, a total summary judgment should not have been granted the State in this case based only upon the design immunity granted by section 830.6. Triable issues existed with respect to the State's claimed liability under section 835(b). (See Cobey, The New California Governmental Tort Liability Statutes (1964) 1 Harv.J.Legis. 16, 22, 24.) In so holding we are not holding contrary to Cabell v. State of California, 67 Cal.2d 150, 60 Cal.Rptr. 476, 430 P.2d 34. As we read this case it did not reach the question at issue here.
The judgment is reversed without prejudice to the State hereafter applying below for a partial summary judgment under Government Code section 830.6 pursuant to Code of Civil Procedure section 437c. Costs on appeal are awarded the Retzlaffs.
FORD, P. J., and ALLPORT, J., concur.
'Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.'
'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 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.'