Stang v. City of Mill Valley , 38 Cal. 2d 486 ( 1952 )

SPENCE, J.

Plaintiffs brought this action to recover damages suffered as the result of a fire on their property, claiming liability against the city and its officials by reason of their failure to maintain certain fire-fighting equipment in condition for effective use in extinguishing said fire. (Public Liability Act, Stats. 1923, ch. 328, § 2, p. 675; 2 Deering’s Gen. Laws, Act 5619; now found in Gov. Code, § 53051.) Defendants filed a general and special demurrer to the amended complaint. The demurrer was sustained with leave to amend. Plaintiffs declined to plead further and judgment accordingly was entered for defendants, from which plaintiffs appeal. Consideration of the facts alleged compels the conclusion that the cited act does not justify the imposition of liability upon defendants in this case, and that the judgment must be affirmed.

From the amended complaint it appears that plaintiffs, husband and wife, owned certain real property, with a residence thereon, in the city of Mill Valley; and that on August 8, 1946, without their fault, a small fire ignited the roof of their premises. Plaintiffs allege that for more than one year prior to the fire, defendants—the city, the city manager and fire chief—knew that the water'lines leading to the fire hydrant adjacent to plaintiffs’ property, and the fire hydrant itself, had become clogged with refuse and were incapable of providing sufficient water for effective fire control; that it was the duty of defendants, and city funds were available, to remedy that situation, but nothing was done in that regard; that upon outbreak of the fire on plaintiffs’ property, the fire department was called and its fire-fighting apparatus arrived in time, had water been available through the clogged 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 because of the inability of the fire department to secure water from the water mains and hydrant, the fire spread, causing 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 defendants to discharge their duties” and to remedy the “defective condition of said public works and property.” In joining the city manager and fire chief as defendants, plaintiffs allege that each had control of. the fire-fighting apparatus, and had the authority and duty of maintaining such equipment in usable condition.

The determinative question is whether plaintiffs’ allegations constitute a cause of action against defendants. It is conceded that fire-fighting is a governmental function (63 C.J.S. § 776, p. 81), and that in the absence of statute, neither a municipality nor its officers are liable in tort for failure to discharge a duty arising from a governmental function. (Miller v. City of Palo Alto, 208 Cal. 74, 75-76 [280 P. 108] ; see 18 Cal.Jur. § 345, p. 1094, and cases cited; annos. 9 A.L.R. 143, 33 A.L.R. 688, 84 A.L.R. 514.) As authority for their action plaintiffs rely on section 2 of the Public Liability Act of 1923, which read: “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 . . . board of such county, municipality ... 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 . . . works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or ... to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.” (Stats. 1923, ch. 328, § 2, p. 675.)

The ordinary case coining within the terms of this act involves a situation where the injured person is using some type of city property that is dangerous or defective, and which he had a legal right to use, such as public streets (Fackrell v. City of San Diego, 26 Cal.2d 196 [157 P.2d 625, 158 A.L.R. 625]), highways (McLaughlin v. City of Los Angeles, 60 Cal.App.2d 241 [140 P.2d 416]), buildings (Gibson v. County of Mendocino, 16 Cal.2d 80 [105 P.2d 105]), bridges (Bosqui v. San Bernardino, 2 Cal.2d 747 [43 P.2d 547]), school grounds (Bridge v. Board of Education, 2 Cal.App.2d 398 [38 P.2d 199]), or other similar property (Bauman v. San Francisco, 42 Cal.App.2d 144 [108 P.2d 989]). Likewise the act sustains the imposition of liability in the situation where the city is using the dangerous or defective property and injury was proximately caused thereby: Pittam v. City of Riverside, 128 Cal.App. 57 [16 P.2d 768], and Osborn v. City of Whittier, 103 Cal.App.2d 609 [230 P.2d 132], where the city negligently allowed a fire to spread from a city dump; Durante v. City of Oakland, 19 Cal.App.2d 543 [65 P.2d 1326], where the city used defective sewer pipes, resulting in the flooding of plaintiffs’ property; Knight v. City of Los Angeles, 26 Cal.2d 764 [160 P.2d 779], where the city negligently installed and maintained street drainage facilities, causing an overflow on plaintiffs’ property with damage to the improvements thereon. But here the city did not create the fire causing the damage to plaintiffs’ property; rather the claimed fault lies in defendants’ failure to provide the means for remedying a condition otherwise created—a different set of circumstances to which plaintiffs seek to apply the act in support of their action.

Upon analysis, it clearly appears that the gravamen of plaintiffs’ complaint is the failure of a governmental function. Such failure involves the denial of a benefit owing to the community as a whole, but it does not constitute a wrong or injury to a member thereof so as to give rise to a right of individual redress (Restatement of Torts, § 288), which right must be predicated upon the violation of a duty of care owed to the injured party. (Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 612 [195 P.2d 501].) As the maintenance and operation of a fire department is so distinguished as a governmental function for the public good, it is “well settled that a municipal corporation is not responsible for the destruction of property within its limits by a fire which it did not set, merely because, through the negligence or other default of the corporation or its employees, the members of the fire department failed to extinguish the fire. ” (38 Am.Jur. § 626, p. 327.) This common-law rule of nonliability of a municipality has been specifically applied in cases where the fire loss was due to an insufficient supply of water because of negligence in the upkeep of the city’s waterworks system, in that water pipes and hydrants became clogged and fell into disrepair. (Anno. 163 A.L.R. 348, 356-357.) Therefore it must be determined whether the cited statute, which is the measure of the waiver of governmental immunity, encompasses the liability which plaintiffs seek to impose.

Closely parallel in its facts and legal principles is the case of Steitz v. City of Beacon (1945), 295 N.Y. 51 [64 N.E.2d 704, 163 A.L.R. 342], where the city was authorized by charter to construct and operate a system of waterworks and to maintain a fire department. A legislative enactment had waived the sovereign immunity of the city, making it liable equally with individuals and private corporations for the wrongs of its officers and employees. Plaintiffs brought an action against the city for damages suffered in the course of a fire which destroyed their property. They predicated the city’s liability upon an alleged defective condition in its fire-fighting equipment arising from the failure to keep in repair a “pressure and flow regulating valve” in the water system, with the result that there was provided an insufficient quantity of water to combat effectively the fire. In holding the case to turn on the question of “whether the facts alleged would be sufficient to constitute a cause of action against an individual under the same duties as those imposed upon the city solely because of failure to protect property from destruction by fire which was started by another,” the court at page 705 succinctly said: “There was no agreement in this case to put out the fire or make good the loss, and so liability is predicated solely upon the . . . provisions of the city’s charter defining its powers of government. Quite obviously these provisions were not in terms designed to protect the personal interest of any individual and clearly were designed to secure the benefits of well ordered municipal government enjoyed by all as members of the community. There was indeed a public duty to maintain a fire department, but that was all, and there was no suggestion that for any omission in keeping hydrants, valves or pipes in repair the people of the city could recover fire damages to their property.

“An intention to impose upon the city the crushing burden of such an obligation should not be imputed to the Legislature in the absence of language clearly designed to have that effect.”

As further support for its conclusion as to the city’s non-liability under the described circumstances, the court referred to the “controlling” decision in Moch Co. v. Rensselaer Water Co., 247 N.Y. 160 [159 N.E. 896, 62 A.L.R. 1199], where a private water company, under “a positive statutory duty” to supply water to a city, was charged with the “failure to furnish sufficient water under adequate pressure to extinguish the fire before it reached plaintiffs’ [property].” As said in the Steitz opinion (64 N.E.2d at p. 707), the court in the Moch ease held that “the action could not be maintained for a tort at common law or for a breach of statutory duty because the duty was owing to the city and not to its inhabitants and because the failure to furnish an adequate supply of water was at most the denial of a benefit and was not the commission of a wrong. ’ ’ Accordingly, the court in the Steitz case refused to construe the statutory waiver of sovereign immunity to contemplate the imposition of a greater liability on the city than would exist against an individual or private corporation charged with like negligence for failure to maintain its fire-extinguishing paraphernalia in usable condition.

When the Public Liability Act was enacted in 1923, there were several decisions in this state dealing with the question of the liability of private water companies. Thus it had been held that neither a city (Ukiah v. Ukiah Water & Imp. Co., 142 Cal. 173 [75 P. 773, 100 Am.St.Rep. 107, 64 L.R.A. 231]) nor a private citizen (Niehaus Bros. Co. v. Contra Costa Water Co., 159 Cal. 305 [113 P. 375, 36 L.R.A. N.S. 1045]) could recover damages from a water company for a property loss by fire due to the company’s failure to maintain its water system properly. In the light of these decisions, of which the Legislature presumably had knowledge (23 Cal.Jur. § 159, p. 782; Miller v. McColgan, 17 Cal.2d 432, 439 [110 P.2d 419, 134 A.L.R. 1424]), it does not seem reasonable to construe the Public Liability Act as intended to impose a greater liability on the city than would prevail against an individual or a private corporation charged with negligence in the administration of its fire protection. (See Watson v. City of Alameda, 219 Cal. 331, 333 [26 P.2d 286] ; People v. Superior Court, 29 Cal.2d 754, 757 [178 P.2d 1].) The “crushing burden of such an obligation” will not be “imputed to the Legislature in the absence of language clearly designed to have that effect.” (Steitz v. City of Beacon, supra, 64 N.E.2d 704, 707.) We find no language clearly designed to have that effect in the cited Public Liability Act of 1923.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., and Traynor, J., concurred.