Loading...
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