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County of San Mateo v. Superior Court (Zachary Rowe)

California Court of Appeals, First District, Second Division

July 25, 2017

THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent ZACHARY ROWE et al., Real Parties in Interest.

         San Mateo County Superior Court No. CIV 515962, Hon. Steven L. Dylina, Trial Judge

          Ropers, Majeski, Kohn & Bentley, Susan H. Handelman, Dennis J. Ward, Terry Anastassiou for Defendant and Petitioner.

          No appearance for Respondent.

          Law Office of Gerald Clausen, Gerald Clausen; Rouda, Feder, Tietjen & McGuinn, Timothy G. Tietjen for Real Party in Interest.

          STEWART, J.

         A 72-foot diseased tree fell on a sleeping child's tent pitched in a campground that is located within a vast public wilderness park. The park's owner, the County of San Mateo, contends it is immune as a matter of law for this allegedly dangerous condition of its property under Government Code section 831.2, commonly referred to as the “natural condition immunity.” It states: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”[1] (See § 831.2.)

         The trial court denied the County's motion for summary judgment under section 831.2, and we now deny the County's petition for a writ of mandate seeking to overturn the summary judgment ruling. We conclude there are triable issues of fact as to whether the property here was “unimproved.”[2]


         On July 25, 2012, Zachary Rowe and his family were camping in San Mateo County Memorial Park, where they occupied campsite D-1 of Sequoia Flat Campground. Twenty feet from Zachary's tent stood a 72-foot, diseased tanoak tree suffering from a species of fungus called Armillaria that caused it to fail. In the early morning hours, while Zachary was sleeping, the massive tree fell on Zachary's tent, crushing him and inflicting catastrophic injuries. The tree also crushed a nearby picnic table. It came to rest on a bumper log located within campsite D-1, 42 feet from the tree's broken end.

         San Mateo County Memorial Park is property owned by San Mateo County, consisting of approximately 499 wooded acres, with trails. Its campsites are located in a heavily wooded campground area, portions of which were cleared of trees. The campground area contains dozens of campsites as well as amenities such as paved roads, telephones, restrooms (with electricity, sinks and flush toilets), showers, dedicated parking areas, a dumping station and a store. An official campground map depicting the campground's layout and some of its amenities is reproduced in the appendix to this opinion as Figure 1.

         Zachary's campsite consisted of a clearing with two picnic tables, a fire pit and a metal food locker. His tent was approximately 20 feet from the broken edge of the tree. A power line runs along an adjacent road and is visible from where the tree stood.

         The tree was 20 feet away from a paved access road and surrounded by a cluster of five campsites, including Zachary's. A professional land surveyor determined there were 34 man-made improvements within 126 feet of where the tree stood, including roadways, bumper logs (which are large trees laid on the ground to keep cars out of camping areas), restrooms, picnic tables, bear boxes, fire pits/barbeque pits, road signs, conductor poles with transformers and a parking bollard. According to the survey map he prepared, which is reproduced as Figure 2 in the appendix to this opinion, the man-made objects closest to the tree were a picnic table and a fire pit in a neighboring campsite, both some 13 feet away from the tree. The map depicts many man-made objects within the tree's 72-foot striking distance, including a power line within 37 feet at its closest point; two access roads, one of which was 22 feet away at its closest point and the other 61 feet away; and various amenities located in Zachary's campsite and several neighboring ones.[3] Also close by, but not within the tree's 72-foot striking distance, were two restrooms, one 113 feet away from the tree, and the other 126 feet away.

         Since at least 1993, the County has inspected what it considers to be “developed areas” of the park for hazardous trees and removed them. It considered Sequoia Flat Campground to be a developed area.

         The Pleadings

         Zachary, by and through his guardian ad litem, sued the County for premises liability (§ 815.2) and dangerous condition of public property (§ 835). He alleged the tree had identifiable structural defects, including rot, a cavity and a denuded trunk and “was overextended, tilted and had poor taper.” He alleged the County negligently failed to maintain campsite D-1 and its environs, failed to warn of or protect against the danger of falling trees, failed to inspect, care for, treat or trim the trees, and knew or should have known that the tree that fell was infected and posed a severe risk of injury yet failed to remove it.

         Zachary also alleged, “[c]ampsite D-1 is one of many campsites located in a designated campground area of San Mateo Memorial State Park. These campsites were created by the defendants who selected the location, created the design, cleared the vegetation in designated areas of the park, and improved the areas with picnic tables, barbeque grills, bathrooms and showers and otherwise improved these sites to accommodate high use, multi-day tent camping by the public.”

         The Summary Judgment Motion

         The County moved for summary judgment on the ground that it was immune as a matter of law under section 831.2. It argued, first, that the tree that injured Zachary was a natural condition. It then rebutted several arguments it anticipated from Zachary as to whether the property was unimproved. The County contended, first, that the presence of bathrooms, showers and other amenities located elsewhere in the park other than at campsite D-1, as alleged in the complaint, did not vitiate its immunity. It also contended that Zachary “cannot argue that Section 831.2 immunity does not apply... by arguing that he was injured in a campsite ‘improved' for campers... because the cause of his injury was the tree, a natural condition of the land.” Finally, the County argued there was no evidence that its creation of campsite D-1 contributed to the accident. In support, it relied on the declaration of a certified arborist, Barnard Noonan, who had inspected the tree, the campsite and the surrounding area and opined that, “[t]he base of the tree was adjacent to the campsite. I saw nothing at the campsite to suggest that any human activity had caused or contributed to the tree having fallen across the campsite.” According to Noonan, “the tree was in a natural condition when it failed, and it failed as the result of a progression of infection by a naturally-occurring fungus.”

         In opposition, Zachary introduced evidence that, among other things, man-made changes during construction of the campgrounds made the tree more susceptible to developing Armillaria. Specifically, in the opinion of arborist Roy Leggitt, “the manmade developments in Memorial Park, and the Sequoia Flat Campgrounds created by development, urbanization, construction and intense camping uses more likely than not created conditions that directly led” to the tree's infection by Armillaria and ultimately to its failure. He averred that, “Site conditions favorable to the development of Armillaria were created at the time of construction of this campsite and nearby improvements over the years.” Among other things, “[c]onstruction activity changed the nature of the soil and the root environment” in the tree's vicinity, which included “removal of adjacent trees, removal of mulch to bare dirt, grading of the soil for the road, soil compaction beneath the road, parking areas nearby and within the campsite, and changes in drainage, ” as well as clearing soil of all organic material and compacting it in order to construct roadways, parking areas and campsites, and in his opinion “[t]hese construction activities have negatively impacted tree health through soil and root damage.” And, according to Leggitt, “construction activities and ongoing uses” caused the roots to gradually die from oxygen starvation. In addition, he stated the extensive removal of trees created favorable conditions for Armillaria because it left behind dead stumps and roots that are hosts for the fungus.

         Zachary also submitted the declaration of horticultural pathologist James Downer opining that, “the man-made changes to the area around Campsite D-1, including the cutting and paving of nearby roads; creation of campsites and vehicle parking areas, and visitor traffic around the campsite predisposed the failed tree to becoming infected with Armillaria, ” and “the physical changes made to the area substantially increased the likelihood that the subject tree would become infected and ultimately contributed to its failure.” His opinion was based upon the fact that trees are more susceptible to the disease when, among other things, soils “have been compacted by the construction of nearby roads, foot traffic, vehicle parking or other means.”

         The trial court concluded there was a triable issue of fact as to whether the property is unimproved, and denied the County's motion. It ruled principally on the basis of evidence that, at the time of the accident, both Zachary and the tree that fell on him were located within campsite D-1, that campsite D- 1 had been “improved” by a clearing, picnic tables, a fire pit, and bumper logs to indicate areas for parking cars, and that in the tree's immediate vicinity were two other, developed campsites and a paved roadway. The court also relied upon the experts' opinions that those “man-made changes altered the characteristics of property surrounding the tree and contributed to the tree's failure by making the tree more susceptible to Armillaria.”

         The County's petition for writ of mandate followed.


         Summary judgment must be granted if all the papers submitted below show there is no triable issue of any material fact, “that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings, and ultimately, the law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Code Civ. Proc., § 437c, subd. (c).) In evaluating that question, we do not review the trial court's reasons for its summary judgment ruling but only its ruling-that is, “whether the judge reached the right result... whatever path he might have taken to get there, and we decide that question independently of the trial court.” (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694, fn. omitted; accord, Ram's ...

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