Keyes

Roger A. Keyes appeals a judgment of dismissal after a demurrer was sustained without leave to amend to his complaint based upon personal injuries incurred when he struck a submerged object while swimming and diving in the Lexington Reservoir. Our sole issue is whether Keyes has pleaded facts sufficient to show his cause of action lies outside the breadth of Government Code section 831.2, 1 affording defendants absolute governmental immunity, and within section 831.8 providing for qualified governmental immunity relating to artificial conditions of reservoirs and canals. We conclude, although Keyes has failed to meet his pleading burden, he is entitled to an opportunity to amend.

Procedural Background

Keyes’ complaint contains a single negligence cause of action and names Santa Clara Valley Water District and the County of Santa Clara, among others, as defendants. He claims defendants own and operate the Lexington Reservoir which they made available for recreational use by the general public; it contained numerous submerged logs and other objects creating a dangerous and hazardous condition presenting an unreasonable risk of bodily harm when used with due care in a…