Kandel v. City of Thousand Oaks 3/24/08 CA2/6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B194356

Case Date: 06/11/2008

Preview:Filed 3/24/08 Kandel v. City of Thousand Oaks CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

LUCAS KANDEL, Minors, etc., et al. Plaintiffs and Appellants, v. CITY OF THOUSAND OAKS et al., Defendants and Respondents.

2d Civil No. B194356 (Super. Ct. No. SC041735) (Ventura County)

While hiking in lands owned and managed by Conejo Open Space Conservation Agency (COSCA), appellants and three other minors came upon a storm drain. They climbed into a catch basin and entered a drainage pipe, which angled sharply upward. Appellants turned back and waited at the mouth of the pipe while the three other minors continued upward. On their descent, they slipped and collided with appellants, injuring them. They filed a tort action against the City and one of the minors, alleging a dangerous condition of public property, and negligence. Both moved for summary judgment, which the trial court granted. We conclude that appellants failed to establish the existence of a dangerous condition of public property and affirm. FACTS AND PROCEDURAL HISTORY On February 16, 2004, appellants Lucas Kandel and Jordan Flores decided to hike in the Arroyo Conejo Open Space. Appellants were accompanied by three other

minors, Justin Flores, Jonathan Flores and respondent Dustin Urquhart. Justin Flores and Jonathan Flores are not parties to the appeal. Three of the boys had visited the Arroyo Conejo Open Space the day before the accident and returned to explore a cave. They brought water, food and flashlights. The boys started the hike at the Rancho Conejo Playground. They visited a waterfall, then proceeded to a second waterfall where they explored a cave. They continued north along the Conejo creek in an area that had no trail. The boys stopped when they reached a storm drain and catch basin. By this time they had been hiking for two to three hours and the temperature was approximately 80 to 90 degrees. The catch basin had 2- to 4-foot high walls. The boys climbed over the wall and felt cool air blowing out of a drainage pipe. They sat down inside the basin and could see water coming through the pipe and moss in the bottom of the basin. Urquhart suggested that the boys explore the pipe. Justin said it was not a good idea. The boys crawled into the pipe on their hands and feet in a hunched-over position. Urquhart was in the lead, followed by Jonathan Flores, Lucas Kandel, Jordan Flores and Justin Flores. After advancing three feet into the pipe it was too dark to see. As they crawled, the slope of the pipe changed abruptly and became very steep. Jordan Flores became frightened and turned around. Lucas Kandel said he would stay with Jordan. Urquhart climbed 400 feet into the pipe. Appellants (Lucas and Jordan) left the pipe, but re-entered it to be in the shade. They waited for 15 minutes, and then called up to the other boys, who had reached a flat area. The boys called out that they were on their way down, and appellants stopped about 5 to 10 feet from the exit, while still inside the pipe. The other boys crabwalked down the pipe, to keep themselves above the water. Justin sat down in the water, so he could slide down the pipe. The boys began sliding too fast and lost control. They tumbled down and collided with appellants, injuring them. The operative pleading is third amended complaint. Appellants, through their guardians ad litem, filed a tort action against the City of Thousand Oaks, Conejo Recreation and Parks District, and the Conejo Open Space Conservation Agency 2

(collectively City), alleging that the City was liable for creating a dangerous condition on public property. They also named Dustin Urquhart in the complaint and alleged a cause of action against him for negligence. Appellants contended that they were injured while sitting at the open end of the storm drain. They claimed that the "open storm pipe and open catch basin/water flow dissipater" constituted a dangerous condition and proximately caused appellants' injuries. They alleged that the City could have prevented their injuries by installing a device to "secure the openings" of the storm drain and catch basin. The storm drain had been the property of COSCA since 1995. Appellants claimed that COSCA knew or should have known that people were entering the pipe and catch basin because there was trash and evidence of campfires nearby. The catch basin was marked with graffiti and part of the basin had been repainted to cover it. Appellants indicated that there were no warning signs near the storm drain, nor was there a fence, grate or barrier to protect people from injury. They claimed that the danger presented was that others could climb in the drain pipe without knowing of the steep incline, lose traction and risk injury to themselves or others. The City and Urquhart answered and moved for summary judgment. The trial court granted both motions. City's Motion for Summary Judgment The City alleged in its motion for summary judgment that 1) there was no dangerous condition of public property; 2) the actions of third parties (i.e., the boys sliding down the pipe) cannot constitute a dangerous condition; 3) the condition of which appellants complained was open and obvious; 4) appellants assumed the risk of injury; and 5) the City is immune from liability under Government Code sections and 830 and 831.7. Appellants filed opposition to the City's motion. They contended that the City was liable for their injuries because it had actual or constructive notice but failed to take measures to protect against the dangerous condition. Appellants claim they used the

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property with due care and did not behave recklessly by sitting inside the pipe waiting for their friends. Appellants also alleged that the doctrine of assumption of the risk does not apply. They asserted that they were unaware of the condition of the pipe until their companions entered it. They had no knowledge of the configuration of the pipe, so could not appreciate the danger it presented "in conjunction with the other children's conduct." Appellants claimed that "taking a walk in nature" is not an inherently risk activity, within the meaning of the doctrine. Trial Court's Ruling When the trial court granted the City's motion for summary judgment, it sated that ". . . it does not appear that the property could be used with due care, and so as an alternate ground in addition to the primary assumption of risk analysis, . . . this does not appear to be a dangerous condition as defined by Government Code Section 830, so on both those grounds the government entities' motions are granted." A formal order was issued granting summary judgment in favor of City. The trial court indicated that "the application of the Doctrine of Primary Assumption of the Risk and the undisputed [f]acts established that no 'dangerous condition' of public property as defined by Government Code Section 830 et seq., existed or proximately caused or contributed to [appellants'] injuries. The court granted summary judgment in favor of Urquhart based on the doctrine of primary assumption of the risk. The rulings on both motions were reduced to a single judgment, which was entered on August 11, 2006. On appeal, appellants claim the trial court erred in granting the City's motion for summary judgment, but raise no claim of error as to its grant of summary judgment in favor of Urquhart. The City and Urquhart both filed reply briefs. Although Urquhart's counsel appeared at oral argument, he did not participate. DISCUSSION Summary judgment is appropriate when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. A 4

defendant seeking summary judgment has the burden of establishing through admissible evidence a complete defense to the action or the absence of an element essential to plaintiff's case. We independently review the motion on appeal to determine the effect of the supporting declarations and evidence. (Code Civ. Proc.,

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