Santa Cruz not liable for woman’s injuries from Davenport Beach tunnel

By Elizabeth Alt | Nov 4, 2018

SANTA CRUZ — A court of appeal affirmed that the Santa Cruz County Regional Transportation Commission is not liable for injuries to a woman who fell while walking through a rock tunnel.

At the crux of the dispute was whether the hazards of the tunnel, which was dug out decades ago and had water running along the rocks in it, should be considered a natural condition, and whether the woman was knowingly undertaking a dangerous activity.

Lisa Wheeler claimed that she was injured walking through a natural rock tunnel located near Davenport Beach with her boyfriend in August 2013. The tunnel, which has been there for decades, was “cut out by man,” approximately 200-feet long, and had diverted water running along the rocks, she said.

Wheeler sued Santa Cruz for premises liability, claiming that they “negligently owned, maintained, managed and operated the premises...willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity.... Employees of defendant created a dangerous condition on the property and/or defendant had constructive notice of the condition and had sufficient time prior to the injury to have corrected it.”

Santa Cruz argued in its motion for summary judgment that the wet, slippery rocks that caused Wheeler’s fall were a natural condition, even though the tunnel was man-made. Santa Cruz claimed that under Government Code section 831.2, they are entitled to public entity tort immunity because Wheeler engaged in a hazardous activity, walking barefoot through a tunnel “that she knew was dark, wet, and slippery...without a light, alternating between walking in water and walking on rock.” Santa Cruz claimed that slipping and falling were “inherent risks of the activity, and that the primary assumption of the risk doctrine barred her claim of injuries.”

The trial court granted summary judgment to Santa Cruz, finding that the conditions were created by “a combination of human activities and natural forces.” The court stated that the “plaintiff had conceded that she engaged in a recreational activity. Further, her boyfriend indicated that the activity was 'obviously hazardous,' and he warned her of the danger of the activity.”

Wheeler appealed, claiming Santa Cruz was not immune because the tunnel was not a “natural phenomenon."

On Oct. 15, the Sixth District Court of Appeal affirmed the Santa Cruz trial court ruling, granting summary judgment to Santa Cruz County Regional Transportation Commission.

Judge Patricia Bamattre-Manoukian said Wheeler’s focus on the tunnel being “man-made” was misplaced, noting that “the undisputed evidence reflects that the tunnel existed for decades, and that water from a diverted creek had been running through the tunnel for some period of time.... This combination of forces produced over a long period of time a condition similar to that which occurs in nature, and therefore it comes within the immunity provided by section 831.2”

“The trial court did not err in granting defendant’s motion for summary judgment,” Bamattre-Manoukian said in her decision, and affirmed the ruling. Judges Franklin Elia and Nathan Mihara concurred.

California Court of Appeals, Sixth Appellate District, Case Number H044351

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