HomeMy WebLinkAbout1992-02-11; City Council; 11550; Amicus BriefCIFOF CARLSBAD - AGENDF-BILL
AUTHORIZATION TO JOIN AS AMICUS AT
THE REQUEST OF THE LEAGUE OF CALIFORNIA
CITIES IN SMALL V. COUNTY OF ORANGE CITY MOR.
RECOM M EN DED ACTION:
If the City Council concurs, by motion authorize the City Attorney
to join the City of Carlsbad as an amicus curiae in the case of
Small v. County of Oranse, Orange County Superior Court Case No. 53
33 56.
ITEM EXPLANATION
Attorney Casselman is representing the League of California Cities
who is asking that cities throughout the state join as amicus in support of the County of Orange in the above referenced litigation.
The brief will focus on natural condition immunity, even if a dangerous condition could be established; a dangerous condition of
public property must create a substantial, as opposed to trivial,
risk of injury; public policy requires enforcement of the natural
condition immunity to ensure continued use of natural public lands
among other things.
In this case, plaintiff, Laura Small, who was attacked by a mountain lion in the Casper Wilderness Park in Orange County, and the jury found that the county park was not a natural condition and, therefore, the county was not entitled to immunity. This case could have adverse implications for lands in the City of Carlsbad which are considered to be in a natural condition. It is
recommended that the City Council authorize the City Attorney's office to join in this case deciding this important issue.
If the Council concurs, you should take the above recommended action which will be at no cost to the City.
FISCAL IMPACT
None
EXHIBIT
Letter from attorney Casselman
DAVID B. CASSELMAN
LEONARD J. COMDEN
ALAN H. LAZAR
CLIFFORD H. PEARSON
JAY N. ROSENWALD
MARK S. ROTH
REBECCA J. SCHROER
STEVE K. WASSERMAN
J. CHRISTOPHER BENNINGTON
HOWARD S. BLUM
GLENN A. BROWN, JR.
AMY FRIEDMAN CECIL
TODD A. CHAMBERLAIN'
EDWARD A. DOBUYS
JOEL FISCHMAN
ROBIN F. GENCHEL
CYNTHIA E. HASDAY
JEFFREY K. JAYSON
ROBERT E. JOHNSON, JR.
PAUL KUJAWSKY'
JACK P. LaHAlE
okrt..l
WASSERMAN, COMDEN & CASSELMAN
5567 RESEDA BOULEVARD
SUITE 330
POST OFFICE BOX 7033
TARZANA (LOS ANQELES), CALIFORNIA 91357-7033
(818) 705-6800 (213) 872-0995
FAX (818) 345-0162
FAX (818) 996-8266
January 27, 1992
RECEIVED
JAN 3; 1992
OF CARLSBAD CITY ATTORNEV
City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Small vs. Countv of Oranae
Orange County Superior Court Case No. 53 33 56
Dear City Attorney:
We have been asked to Prepare an Amicus Curiae Brief
PAUL H. LASKY
WILLIAM F. LEONARD"
LLOYD S. MANN
STEPHEN R. PAUL
NORMAN L. PEARL
SUSAN PLESKUS
ROBERT C. POWERS JOSEPH M. RIBAKOFF
MARILYN S. SCHEER
GARY S. SOTER
CATHERINE H. STEVENSON
CRYSTAL A. ZARPAS
OF COUNSEL
BARRY S. PEARLMAN
ELLIOT F. BORSKA
GARY M. MOGIL'
ALSO ADMITTED
*PENNSYLVANIA
+WASHINGTON
**NEBRASKA
WRITER'S DIRECT DIAL NUMBER
609-2323
on appeal for
the League of California Cities with respect to the above-
referenced matter. As you may know, this case involves five-year
old Laura Small who was attacked and severely injured by a wild
mountain lion on March 23, 1986 at Casper Wilderness Park in Orange
County.
At trial, the jury determined that the park was not unimproved public property for purposes of Government Code S 831.2, even
though the nearest man-made improvement was located approximately
one-half mile from the accident site. This case received
considerabla nedia attsikion.
For a number of years our firm has been deeply involved in natural
condition immunity issues as well as other governmental liability
issues. We have defended numerous cases against public entities which focused on the natural condition immunity and hazardous recreational activity immunity provided by Government Code SS 831.2 and 831.7. As a result we were asked to participate in drafting and supporting legislation in Sacramento leading to the enactment
of Government Code S 831.21 which augmented the natural condition
immunity.
We were also involved in a series of successful trials and motions for summary judgment which led to published decisions involvingthe natural condition immunity. They include Geffen vs. Countv of Los
January 27, 1992 Page 2
Anaeles (1987) 197 Cal.App.3d 188, 242 Cal.Rptr. 492, Horin v S.
Countv of Los Anaeleg (1989) 215 Cal.App.3d 184, 263 Cal.Rptr. 479 and Tessier vs. City of N emort B each (1990) 219 Cal.App.3d 310,
268 Cal.Rptr. 233.
In view of our keen interest in this area, we were pleased and
flattered when the League of California Cities asked us to assist
by filing an Amicus Brief in the case of Small vs. Countv of Oranae. We sincerely believe that the verdict in the Small case
was contrary to California law and public policy. The judgment of
the trial court in this case poses a threat to every public entity that owns or controls unimproved property that is ilsed by the public for recreational purposes.
In order to present an Amicus Brief with the maximum possible impact, we would sincerely like to include your principal as one of the entities in support of the Amicus Brief.
We are awaiting receipt of the Reporter's and Clerk's Transcripts
on Appeal. However based upon information available to date, our
attack on the verdict will consist of the following points:
1.
2.
3.
4.
5.
The entire subject matter of the Small case is
encompassed by the natural condition immunity, even
if a dangerous condition could be established;
The duty to warn of a known dangerous natural condition is inconsistent with public policy and the legislative
intent behind the natural condition immunity;
The absence of prior mountain lion attacks defeats the notice element as a matter of law;
A dangerous condition of public property must create a
substantial, as opposed to trivial, risk of injury;
(a) Mere sightings of mountain lions, in the absence of
prior attacks, does not present a substantial risk;
Public policy requires enforcement of the natural
condition immunity to ensure continued use of natural public lands.
If you agree with our position on the issues raised in this case,
or have additional thoughts which would augment our position in the
Amicus Brief, please contact us at your earliest convenience.
January 27 , 1992 Page 2
We hope to have strong based support for this brief in order to
maximize our chance of convincing the Court of Appeal that it
should reverse this dangerous precedent. We look forward to
hearing from you regarding your support in this important case.
Very truly yours,
WASSERMAN, COMDEN h CASSELMAN DAVID B. CASSELMAN MERT C. POWERS
DAVID B. CASSELMAN
DBC/mle:36447
cc: League of California cities