Milligan

I respectfully dissent.

Government Code section 831.2 (further statutory references are to that code) immunizes public entities from tort liability for injuries resulting from a natural, though dangerous, condition of unimproved public property. The section provides “Neither a public entity nor a public employee is liable for the 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.” In my view, defendant (City) was immune from liability to plaintiffs under the foregoing provision.

Plaintiffs, adjoining private property owners, were neither using, nor present upon, City’s property when the incident occurred. The majority holds that section 831.2 was not intended to bar suit by nonusers of public property who are injured on adjacent private land. The majority relies primarily upon a statement in the legislative committee comment that “it is not unreasonable to expect persons who voluntarily use unimproved public property in its natural condition to assume the risk of injuries arising therefrom as a part of the price to be paid for the benefits received.” (See legis.…

In a bifurcated trial based on stipulated facts, the trial court concluded that Government Code section 831.2, which immunizes *831 public entities for injuries caused by natural conditions of unimproved public property, precluded recovery of damages from the City of Laguna Beach. 1 Plaintiffs appeal the ensuing judgment.

We have determined that the immunity is applicable only to users of the governmental property and is inapplicable to injuries caused to nonusers on adjacent property, as occurred here. Accordingly, we reverse the judgment.

During a storm, several eucalyptus trees growing on the city’s property fell causing injury to plaintiffs’ residence which was on adjacent property. Plaintiffs commenced this action for damages to their home and for emotional distress. They alleged that the city had maintained the trees in a dangerous condition. (§ 835.) The city among other defenses claimed that it was immune from liability under section 831.2, and the trial court tried the immunity issue first.

Section 831.2 is part of the Tort Claims Act of 1963 (§§ 810-996.6), which established governmental liability and immunity for tortious acts. The section provides: “Neither…

I concur in the result. I respectfully suggest that the issue whether section 831.2 immunity applies to nonusers of public property is irrelevant. The immunity affects only liability for injury caused by natural conditions. It is, however, undisputed that the eucalyptus trees involved in this case were, in contemplation of law, an artificial condition. The parties stipulated that “eucalyptus trees are not native to California” and that “plaintiff’s expert will testify that the trees were planted by man.” No other *836 evidence on the point was introduced. In Coates v. Chinn (1958) 51 Cal.2d 304, 308 [ 332 P.2d 289 ], we said: “The eucalyptus trees planted alongside the highway constituted ‘a nonnatural or artificial condition’ created on the land as distinguished from a ‘natural condition’ of the land, ‘irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces.’ (Rest., Torts, § 363, com. b.)”

Since the judgment below was based on an immunity which simply does not apply to the facts of this case, I join in the reversal.

Comment b to section 363 of the Restatement Second of Torts reads as follows: “b. Meaning…

In a bifurcated trial based on stipulated facts, the trial court concluded that Government Code section 831.2, which immunizes public entities for injuries caused by natural conditions of unimproved public property, precluded recovery of damages from the City of Laguna Beach. [1] Plaintiffs appeal the ensuing judgment.

We have determined that the immunity is applicable only to users of the governmental property and is inapplicable to injuries caused to nonusers on adjacent property, as occurred here. Accordingly, we reverse the judgment.

During a storm, several eucalyptus trees growing on the city's property fell causing injury to plaintiffs' residence which was on adjacent property. Plaintiffs commenced this action for damages to their home and for emotional distress. They alleged that the city had maintained the trees in a dangerous condition. (§ 835.) The city among other defenses claimed that it was immune from liability under section 831.2, and the trial court tried the immunity issue first.

Section 831.2 is part of the Tort Claims Act of 1963 (§§ 810-996.6), which established governmental liability and immunity for tortious acts. The section…