PETERS; BRAY, J., and AGEE

STANG et ux.
v.
CITY OF MILL VALLEY et al.

Aug. 21, 1951.
Hearing Granted Oct. 18, 1951.

Charles Reagh, San Francisco, for appellants.

Thomas C. Nelson, City Atty. of Mill Valley, San Rafael, for respondents.

PETERS, Presiding Justice.

From a judgment for defendants entered upon the sustaining of general and special demurrers with leave to amend (plaintiffs having declined to amend), plaintiffs prosecute this appeal.

The complaint alleges that plaintiffs, husband and wife, own certain described real and personal property located in Mill Valley; that for about one year prior to August 8, 1946, all of the defendants--the city its city manager and fire chief--knew that the water lines leading to the fire hydrant adjacent to the property of plaintiffs, and the fire hydrant itself, were clogged with refuse and unusable, so that it was impossible to get sufficient water through such hydrant to extinguish fires; that it was the duty of defendants, and city funds were available, to remedy that situation; that defendants nevertheless negligently and improperly failed to repair and to maintain the equipment in usable order; that on August 8, 1946, without fault of plaintiffs, a small fire started on the roof of plaintiffs' premises; that the fire department of Mill Valley was called and fire-fighting equipment arrived in time, had water been available through the defective mains and hydrant, to have extinguished the fire before it would have caused damage to exceed $25; that no other source of water was available, nor was the fire department equipped with chemical apparatus sufficient to put out a minor fire; that defendants all knew the nature of the equipment possessed by the fire department, and also, knew of the purpose of the water mains and fire hydrant; that because of the inability of the fire department to secure water from the water mains and hydrant, the fire spread and caused damage to the house and personal property of plaintiffs totalling $9,563.50; that this damage was the direct and proximate result of the failure of the defendants to discharge their duties and to remedy the described defective condition of the public works and property; that such failure caused a highly dangerous condition which was likely to and did cause the damage described; that a claim for said damage was duly and properly filed. Baumberger, the city manager, and Armager, the fire chief, were joined as defendants, it being specifically alleged that each of them had control of the fire-fighting apparatus, and had authority, and were charged with the duty of maintaining fire-fighting equipment in a fair and usable condition.

In our opinion, that complaint states a good cause of action against all defendants.

There is little doubt that fire-fighting is a governmental function, although the supplying of water may be proprietary in nature. There is also no doubt, under existing law, that, in the absence of statute, a municipality or its officers are not liable in tort for failure to discharge a duty arising from a governmental function. Miller v. City of Palo Alto, 208 Cal. 74, 280 P. 108; Howard v. City and County of San Francisco, 51 Cal. 52; see cases collected 18 Cal.Jur. p. 1094, § 345. That rule applies to cases where houses are destroyed by fire because pipes and hydrants are clogged, where there is no statute imposing liability. 163 A.L.R. 348. By statute, of course, there can be a waiver of this governmental immunity. The question here presented is whether the statute involved encompasses a waiver of the tort described in the complaint.

The only statute applicable to this problem, so far as the city is concerned, is section 2 of the Stats. of 1923, p. 675, Chap. 328, Deering's Gen.Laws, Vol. 2, Act 5619. It provides: 'Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.'

This section was repealed in 1949, Stats. of 1949, Chap. 81, at p. 327, and substantially re-enacted as Government Code sections 53050 and 53051. The fire here involved having occurred in 1946, the 1923 statute is applicable.

The complaint charges that the city, with full knowledge of the defective condition, and with city money available to remedy the defects, allowed the mains and fire hydrant involved to become so choked with refuse that water was not available to put out the fire, and that as a proximate result thereof plaintiffs' property was damaged. Certainly the fire mains and hydrant are public 'works' or 'property' within the meaning of the 1923 statute. The defendants seem to argue that liability under that statute is imposed only when the injured party is using some type of city property that is defective, and which he had a legal right to use, such as using public streets, highways, bridges, or school grounds or other similar property. There is no such limitation on the operation of the statute. As long as it is alleged that the injuries proximately were caused by the defective maintenance or operation of public works or property under the conditions set forth in the statute, a good cause of action has been pleaded.

The District Court of Appeal of the Second Appellate District, Division Three, in a well-reasoned opinion written by Justice Vallee has recently reviewed, at some length, the legal principles applicable to pleading a cause of action under the 1923 statute. Osborn v. City of Whittier, 103 Cal.App.2d 609, 230 P.2d 132, hearing denied by the Supreme Court. In that case the city operated a rubbish disposal dump within the city. Plaintiff owned nearby improved land. A fire spread from the dump to plaintiff's land and destroyed most of the improvements. After filing a claim he brought an action under the 1923 statute. The trial court sustained a demurrer without leave to amend and entered judgment accordingly. This was reversed. The court reviewed many of the authorities that discuss the essentials of a cause of action under the 1923 statute, reviewed the allegations of plaintiff's complaint, and then summarized its views as follows, 230 P.2d 138: 'The complaint contains factual allegations of all the elements essential to a cause of action under the Public Liability Act: (1) facts showing a dangerous condition of public property; (2) actual knowledge of the dangerous condition by persons having authority to remedy the condition; (3) the lapse of a reasonable time after knowledge within which to remedy the condition, or to take such action as might be reasonably necessary to protect the public against the dangerous condition; (4) failure to remedy the dangerous condition; (5) the dangerous condition was a proximate cause of the damage; and (6) presentation of a verified claim within ninety days. [Citing cases.] The complaint met the requirements of the statute, and was not vulnerable to a general demurrer.'

The present complaint meets all of these requirements.

Defendants cite cases holding that a city cannot successfully maintain an action against a private water company for damages to city property caused by the failure of the private water company to maintain water pressure in fire hydrants pursuant to its contract with the city, Ukiah City v. Ukiah Water & Imp. Co., 142 Cal. 173, 75 P. 773, 64 L.R.A. 231, or holding that a private citizen cannot recover against a private water company for damage caused by a fire where the private company fails to maintain the water system properly. Luning M. P. Co. v. East Bay W. Co., 70 Cal.App. 94, 232 P. 721. Neither of these cases involved liability under the 1923 statute. For that reason, they are not in point. Cases from other jurisdictions, cited by defendants, either involve statutes different from ours, or state a much more limited rule than exists in this state. In our opinion, the principles stated in the Osborn case demonstrate that the present complaint states a cause of action against the city.

The complaint also states a good cause of action against the city manager and fire chief. The complaint alleges that the injury sustained was the proximate result of the defective condition of public works or property; that these two officials had notice of the defective condition; that they had the authority and it was their duty to remedy the defective condition; that public funds were available to remedy the condition; that within a reasonable time after receiving notice they failed to remedy the condition; and that plaintiffs were without fault. Such allegations are sufficient to charge those officials with liability.

Section 1953 of the Government Code reads as follows:

'No officer of the State or of any district, county, or city is liable for any damage or injury to any person or property resulting from the defective or dangerous condition of any public property, unless all of the following first appear:

'(a) The injury sustained was the direct and proximate result of such defective or dangerous condition.

'(b) The officer had notice of such defective or dangerous condition or such defective or dangerous condition was directly attributable to work done by him, or under his direction, in a negligent, careless or unworkmanlike manner.

'(c) He had authority and it was his duty to remedy such condition at the expense of the State or of a political subdivision thereof and that funds for that purpose were immediately available to him.

'(d) Within a reasonable time after receiving such notice and being able to remedy such condition, he failed so to do, or failed to take reasonable steps to give adequate warning of such condition.

'(e) The damage or injury was sustained while such public property was being carefully used, and due care was being exercised to avoid the danger due to such condition.'

Defendants argue that under subdivision 'e' of the statute, liability is only imposed where the plaintiff is injured while 'using' public property. That is not the law. The only effect of subdivision 'e' in this type of case, where the injury does not arise out of use by the plaintiff, is that plaintiff, in actions against city officials, must negative his own contributory negligence. Moore v. Burton, 75 Cal.App. 395, 242 P. 902; Gorman v. County of Sacramento, 92 Cal.App. 656, 268 P. 1083. The complaint here meets that test, and complies with all of the other requirements of the section.

The judgment appealed from is reversed.

BRAY, J., and AGEE, Justice pro tem., concur. --------------- * Subsequent opinion 240 P.2d 980. 1 While most of the cases under the 1923 statute involve injuries received while the plaintiff was using public streets, bridges or school grounds, there are many cases where the plaintiff was injured as a proximate result of defective city works not in 'use' by the plaintiff. A few of these cases follow: In Pittam v. City of Riverside, 128 Cal.App. 57, 16 P.2d 768, the city negligently allowed fire to spread from a city dump. It was held that liability existed under the 1923 statute, although a judgment for plaintiff was reversed because of an error in an instruction. In Durante v. City of Oakland, 19 Cal.App.2d 543, 65 P.2d 1326, the city used defective sewer pipes, resulting in flooding plaintiff's property. A recovery by plaintiff was affirmed. In Knight v. City of Los Angeles, 26 Cal.2d 764, 160 P.2d 779, it was held that an action existed under the 1923 statute for damages for negligently maintaining draining facilities--see, also, Bacigalupi v. Bagshaw, 87 Cal.App.2d 48, 196 P.2d 66, and Edward Brown & Sons v. City & Co. of S. F., 36 Cal.2d 272, 223 P.2d 231. In Bodholdt v. Garrett, 122 Cal.App. 568, 10 P.2d 533, plaintiff alleged that he was injured because of a defective spring in a city truck, resulting in the truck colliding with another vehicle. It was held that liability would exist under such circumstances, but the case was reversed because of failure of proof. Many other cases could be cited.