156 Cal. App. 3d 256

[Civ. No. 28983.

Fourth Dist., Div. One.

May 16, 1984.]

ABRAHAM GONZALES, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

*257Counsel

Gillivan & Roth, Etta Oeltman and Jeffrey A. Roth for Plaintiff and Appellant.

John W. Witt, City Attorney, Ronald L. Johnson, Senior Chief Deputy City Attorney, and Eugene P. Gordon, Chief Deputy City Attorney, for Defendant and Respondent.

Opinion

BROWN (Gerald), P. J.

Plaintiff Abraham Gonzales appeals a judgment dismissing his complaint against San Diego after the court sustained San Diego’s demurrer without leave to amend.

I

Gonzales sued San Diego alleging “tailgate” parties in the San Diego stadium parking lot occurring before, during and after San Diego Charger *258football games created a dangerous condition on public property which San Diego not only knew about, but encouraged. He alleged San Diego negligently failed to provide for the public’s safety from such dangerous condition and such dangerous condition proximately caused Gonzales’ injuries which he sustained when a drunk “tailgater” hit him in the face with a tire iron. San Diego demurred, alleging it was immune from suit because Gonzales had failed to state a cause of action under Government Code section 835.1 The court found Gonzales had not alleged any physical defect in the property and therefore did not state a cause of action under section 835.

II

Gonzales contends the court erred in sustaining the demurrer because a dangerous condition can exist and a cause of action be stated under section 835 absent a physical defect on the property. He asserts his allegation San Diego encouraged the consumption of alcohol in the stadium parking lot sufficiently alleges a dangerous condition under section 835. While a physical defect (in the sense of some aberrant condition in or on the property) is not necessary to state a cause of action under section 835 (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 715-718 [159 Cal.Rptr. 835, 602 P.2d 755]), some physical condition of the property must be a contributing cause to the plaintiff’s injury (Taeleifi v. Southern Cal. Rapid Transit Dist. (1982) 130 Cal.App.3d 366, 369 [181 Cal.Rptr. 697]; Ducey, supra, 25 Cal.3d at pp. 715-718, where the court found no physical defect in the roadway, but where the road’s physical condition of having no median barriers contributed to the plaintiff’s injury). Here Gonzales has not alleged any concurrent physical condition in the parking lot property increased the risk of injury *259from criminal attack. Therefore, he has only alleged his injury resulted from the criminal acts of a third party, which is insufficient to state a cause of action under section 835 (Taeleifi, supra, 130 Cal.App.3d at p. 370).

Were we to hold a cause of action exists, the way would be open to include public entities in lawsuits between private parties for personal injuries occurring in parks, sports arenas, on beaches or even on public streets and sidewalks during picnics, sporting events, parades or other gatherings of people. We find no statutory authority in section 835 for practically eliminating public entity immunity.

HI

Gonzales meritlessly contends the court’s sustaining the demurrer denied him equal protection of the law (Stone v. State of California (1980) 106 Cal.App.3d 924, 930-931 [165 Cal.Rptr. 339] (hg. den.).

IV

Judgment affirmed.

Cologne, J., and Butler, J., concurred.

Gonzales v. City of San Diego
156 Cal. App. 3d 256

Case Details

Name
Gonzales v. City of San Diego
Decision Date
May 16, 1984
Citations

156 Cal. App. 3d 256

Jurisdiction
California

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!