In City of Los Angeles v. Superior Court (Wong), published March 18, 2021, the Second District Court of Appeal, Division 4 issued a writ directing the trial court to sustain the petitioner city's demurrer to the real party's lawsuit. The real party plaintiff alleged that her husband, a city police officer, contracted typhus from unsanitary conditions in and around the police station where he worked, and that the plaintiff then contracted typhus from her husband. She sued the city under Government Code section 835 for maintaining a dangerous condition of public property. The city demurred on the ground that it owed no duty to the plaintiff, because she did not have contact with the allegedly dangerous property, and because it was immune under Government Code section 855.4 for its decisions to perform or not to perform acts to promote public health of the community by preventing disease or controlling communication of disease. The trial court rejected both arguments.
The appellate court ruled that the city did not owe the plaintiff a duty under section 835. Although section 835 imposes a duty on public entities not to maintain property in a dangerous condition, it does not expressly state to whom the duty is owed. The plaintiff contended that causation was sufficient to establish that the city owed a duty to her, even if she did not have contact with the property. But no case finds liability under section 835 where the plaintiff has had no physical contact with the dangerous condition on the subject property or any adjacent property. The trial court analogized to case law that a private landowner can be liable when a person takes home asbestos fibers, and the exposure to the fibers causes another person to become ill. But that law concerns private landowners. Section 835 liability is not coextensive with private liability. Further, the plaintiff did not allege the husband brought home fleas or other infection vectors from the public property; she alleges she contracted the disease from her husband. The city therefore owed no duty to the plaintiff, and the demurrer should have been sustained on that ground.
Further, even if the city owed a duty, it was immune under section 855.4. Keeping city property free from disease-causing conditions is a discretionary discretion subject to the immunity. The plaintiff had the duty to plead with particularity facts showing the city's actions did not fall within the immunity. She did not do so. She did not allege a nondiscretionary mandatory duty the city failed to comply with. Although the immunity does not apply to failure to carry out decisions with due care, the plaintiff did not allege facts in her complaint that the city carried out any particular act or omission without due care. Instead, she alleged the decision not to abate the dangerous condition of the property caused the injury.
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