Opinion
NOT TO BE PUBLISHED
Superior Court County No. 239187 of Ventura, Barbara Lane, Judge.
Law Office of Mark Alan Papay, Mark A. Papay; Moomau & Associates and Richard L. Moomau, for Appellants.
Law Offices of Alan E. Wisotsky, Alan E. Wisotsky and Jeffrey Held, for Respondent.
PERREN, J.
Adjacent property owners sued the County of Ventura on theories of inverse condemnation, dangerous condition of public property and private nuisance to recover damages from a landslide on their properties. They allege that the landslide resulted from the discharge of surface waters flowing through a leaking corrugated metal pipe running the length of their properties. The trial court sustained the County's demurrer on the inverse condemnation claim finding that (1) the pipe and the easement in which it lay belonged to the property owners and (2) the developer's offer of dedication was expressly rejected by the County. A jury trial resulted in verdicts in favor of the County on the two remaining counts. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellants Patrick Shawn Barrett and Patricia Chan own a hillside residential lot on Otero Court adjacent to a lot owned by appellants Morris Checansky and Iris Checansky. The lots were created in 1963 when the County approved a subdivision map for the Las Posas Estates Subdivision in an unincorporated area near the City of Camarillo. At the time of subdivision map approval, the County accepted the developer's offer to dedicate the streets within the subdivision--Otero Court, Estaban Drive, and Corriente Court--for public use, including the drain openings and pipe inlets located within the area of the County's right of way. The County expressly rejected the developer's offer to dedicate a 15-foot wide, 265-foot long drainage easement along the boundary line between appellants' parcels.
The County also rejected two other drainage easements on private property in the subdivision at the time of subdivision map approval. Those easements are not involved in this lawsuit.
Prior to sale of the lots in the subdivision, the developer installed an 18-inch corrugated metal drainpipe in the easement. The purpose of the pipe was to drain surface waters from the subdivision's streets down the hillside to publicly-owned facilities draining to the ocean. Subsequently, a single family residence was constructed on each of the lots.
Barrett and Chan purchased their property in 2000. The Checanskys purchased their residence in 2004. On January 23, 2005, a landslide occurred on their properties. After inspection, appellants determined that the landslide was caused by corrosion of the storm drain pipe which allowed water to seep into and destabilize the hillside. Appellants filed a claim with the County under the Government Tort Claims Act. (Gov. Code, § 810 et seq.) The County denied the claim.
All statutory references are to the Government Code unless otherwise stated.
Appellants then filed a complaint against the County for inverse condemnation, trespass, nuisance, dangerous condition of public property, and negligence alleging that the County is responsible for the landslide because it failed to maintain the drain pipe beneath their properties. The County filed an answer to the complaint asserting numerous affirmative defenses, including a defense based on the County's lack of ownership or control of the drain. The County alleged that it had rejected the developer's offer of dedication of the drain easement at the time it approved the final subdivision map for the tract in 1963.
After numerous pretrial motions--a summary judgment motion, a motion for judgment on the pleadings, two demurrers and a motion for nonsuit--decided by three different judges, failed to dispose of the action, the County succeeded in obtaining a dismissal of the inverse condemnation claim after the trial court sustained the County's demurrer to appellants' second amended complaint without leave to amend. The basis of the County's demurrer, as well as its other pretrial motions, was that the County had expressly rejected the developer's offer of dedication of the drainage easement, and the County had not designed, constructed or maintained the drain pipe. In opposition, appellants argued that an implied dedication occurred, and the pipe became a part of the County's public drainage system, because the streets in the subdivision, which the County had accepted for public use, were used to drain storm water from the subdivision into the pipe on appellants' properties.
The trial court sustained the demurrer on the ground that "there is no liability in inverse condemnation (although liability may lie in tort or other theories) where damages or failure of equipment are the result of negligent or inadequate operation and maintenance." Subsequently, the claims for dangerous condition of public property and private nuisance were tried to a jury. The jury rendered a special verdict finding in favor of the County on both claims and entered judgment accordingly.
Appellants voluntarily dismissed their claims for negligence and trespass prior to trial.
On appeal, appellants assert the trial court erred in sustaining the County's demurrer to the inverse condemnation claim because the court focused on the County's negligence only and "inverse condemnation may co-exist with negligence." Appellants also argue the demurrer was erroneously sustained because the County used the drain pipe on appellants' properties for a public use inasmuch as it directed storm water from public streets to drain through the pipe on its way to County-owned drainage improvements and the landslide was caused by the "public storm drainage." In addition, appellants argue that they alleged facts showing that the damage to their properties resulted from a public improvement functioning as intended. Lastly, appellants assert that the drain pipe on their properties was accepted by the County when it accepted the developer's dedication of the streets and other drainage improvements in the subdivision.
Appellants contend that the jury's verdict in favor of the County on their claims for dangerous condition of public property and private nuisance resulted from the trial court's error in (1) making findings as a matter of law that the drainpipe was not County property under theories of express or implied acceptance or prescriptive easement, (2) excluding evidence of the County's failure to inspect and maintain the drain pipe on appellants' properties, (3) prohibiting appellants from cross-examining the County's witness regarding formal acceptance of the drain pipe, (4) barring appellants' witness from testifying about street drainage issues, (5) barring appellants from submitting evidence regarding the County's negligence in refusing to accept the dedication of the drain pipe, (6) instructing the jury that the County had no duty to warn appellants of the corroding pipe and highly erosive nature of the land, and (7) refusing to instruct the jury as to the rule of reasonableness when a property owner changes a natural system of drainage.
DISCUSSION
1. The County's Demurrer to the Inverse Condemnation Cause of Action Was Properly Sustained Without Leave to Amend
1. Standard of Review
We review an order sustaining a demurrer de novo, exercising our independent judgment to determine whether a cause of action has been stated under any legal theory. (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 788.) We accept as true properly pleaded allegations of fact, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We also consider matters subject to judicial notice. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.) "The burden is on [appellant] to demonstrate the manner in which the complaint might be amended, and the appellate court must affirm the judgment if it is correct on any theory." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459-460.)
2. The Law of Physical Takings
"The authority for prosecution of an inverse condemnation proceeding derives from article I, section 19, of the California Constitution. [Citation.] That section requires that just compensation be paid when private property is taken or damaged for public use. [Citation.] [¶] The policy underlying the constitutional provision is to distribute throughout the community the loss inflicted upon the individual by the making of public improvements. [Citations.] Thus, a public entity may be liable in an inverse condemnation action for any physical injury to real property proximately caused by a public improvement as deliberately designed and constructed. [Citations.] [¶] The principle of inverse condemnation, however, will not subject a public entity to general tort liability. [Citation.] If a plaintiff is unable to show that the public entity's conduct, although negligent, is in pursuance of a public use, an action based on inverse condemnation will fail." (Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 351-352.)
The taking of private property for the purpose of constructing storm drainage systems has been recognized to be for a public use. (Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 595; Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "An action in inverse condemnation will lie when damage to private property is proximately caused by use of a storm drainage system for its intended purpose." (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 170.) When accepted and approved by a municipality, drainage systems become a public improvement and a part of the system of public works. (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency. When the work thus planned, specified and authorized results in an injury to adjacent property the liability is upon the public agency under its obligation to compensate for the damages resulting from the exercise of its governmental power." (Id. at pp. 362-363; see DiMartino, supra, at pp. 338-339.)
3. The Law of Dedications
"Dedication of private property for public use requires an offer of dedication by the owner and an acceptance of the offer by the public entity." (Ackley v. City Etc. of San Francisco (1970) 11 Cal.App.3d 108, 112.) The "approval or 'acceptance need not be by formal action but may be implied from official acts of dominion or control over the property....' [Citation.]... 'Use of the land [for a public purpose] over a reasonable period of time constitutes an acceptance..., without any formal action in relation thereto by governmental authority....'" (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) "On the other hand, where 'there is no acceptance of a street or the drainage system within it, there is no public improvement, public work or public use and therefore there can be no public liability for inverse condemnation.'" (Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-569.)
The filing of a subdivision map delineating an easement is an offer to dedicate the land. (Biagini v. Beckham (2008) 163 Cal.App.4th 1000, 1009.)But the approval of plans or maps and issuance of permits by a public entity to a private property owner for the construction of private improvements are not alone sufficient to evidence the requisite dominion and control by the public agency. (Yox v. City of Whittier, supra, 182 Cal.App.3d at pp. 354-355; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 570-572; DiMartino v. City of Orinda, supra, 80 Cal.App.4th at pp. 339-340.) A statutory dedication is effected when, in compliance with the Subdivision Map Act then in force, an offer of dedication is accepted by the public agency. (Galeb v. Cupertino Sanitary Dist. (1964) 227 Cal.App.2d 294, 301.) Formal acceptance of a dedication may either be by notation on the final map or by later resolution. (Ullery, supra, at p. 567, fn. 1.) A dedication is not complete until the offer has been accepted by the appropriate official governing body or designated office having jurisdiction over the property offered for dedication. (§ 66477.3; see DiMartino, supra, at p. 343 ["it is well established that such words of dedication on the map do not accomplish a dedication, even upon recordation and filing of the map"].) Until accepted, title to the dedicated property does not pass to the public agency. (§ 66477.1; see Mikels v. Rager (1991) 232 Cal.App.3d 334, 351 [until offer of dedication is unconditionally accepted no public interest is created].)
A statutory offer of dedication that has not been formally accepted, however, does not rule out the possibility of a common law, or implied, dedication, which may arise when the offer is impliedly accepted from the public's use of the subject property over a reasonable period of time. (See Biagini v. Beckham, supra, 163 Cal.App.4th at p. 1009 ["'... Use of the land so identified by the public for such purposes over a reasonable period of time constitutes an acceptance of the offer so made [citations], without any formal action in relation thereto by governmental authority ...'"].) Without formal acceptance, dominion and control exercised by the public entity over property necessary for inverse liability may be implied from the performance by the entity of maintenance and repair work or other official acts of control over the property. (Ackley v. City Etc. of San Francisco, supra, 11 Cal.App.3d at p. 113; Yox v. City of Whittier, supra, 182 Cal.App.3d at p. 353; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-569.) In addition, public use may be proof of the County's acceptance of the dedication. (See Hanshaw v. Long Valley Road Ass'n (2004) 116 Cal.App.4th 471, 482 [filing subdivision map delineating a street thereon is an offer to dedicate the land identified; use of the land so identified by the public for such purposes over a reasonable period of time constitutes an acceptance of the offer so made].)
4. No Implied Dedication
Here, the subdivider's offer of dedication of the drainage easement on appellants' property was expressly rejected by the County. It is undisputed that the County did not install, or supervise the installation of, the drainpipe. It is also undisputed that the County did not inspect, maintain or repair the pipe over the many years of its existence. The second amended complaint contains no facts showing that the County exercised dominion or control over the easement in any other manner. (See Ackley v. City Etc. of San Francisco, supra, 11 Cal.App.3d at pp. 113-114 [city not liable for injuries where there was no evidence of any exercise of dominion or control by city by making repairs to the road, inspecting it, or acting in any other way so as to imply acceptance].) Without such incidents of ownership or control, the easement is nothing more than a private easement between the developer and the property owners. (See Yox v. City of Whittier, supra, 182 Cal.App.3d at p. 353 [no authority exists for holding a city liable in inverse condemnation for injury to private property within a subdivision resulting from completely private construction-privately designed, financed and built-where the city's sole affirmative action was the issuance of permits and approval of the subdivision map].)
Although the second amended complaint alleges that the easement was formally accepted by the County, we disregard the allegation because respondent has provided conclusive evidence that the County formally rejected the offer of dedication of the drainage easement when it approved the subdivision map. (Evid. Code, §§ 452, 459 [appellate court may take judicial notice of official acts of public entities].)
Nonetheless, appellants assert that an implied dedication occurred because the drainpipe has been used since its installation for the public purpose of draining surface water from public streets in the subdivision. The law is to the contrary. Public use "may imply an offer to dedicate but may not, in itself, constitute an acceptance for the purpose of imposing liability on a public entity." (Ackley v. City Etc. of San Francisco, supra, 11 Cal.App.3d at p. 113, fn. 3.)"The rationale behind this rule is that 'to permit a small segment of the public by use of a private way to impose the burden of maintaining it upon the general public would be in dereliction of the powers of the elected officials, and permit the establishment of public roads in undesirable places.'" (Ibid.)
Chatman v. Alameda County Flood Control Etc. Dist. (1986) 183 Cal.App.3d 424, is instructive. In that case the plaintiff's property was damaged by corrosion of a culvert under her home. The culvert was the work of a developer in the early part of the century and covered part of a major drainage creek. The defendant flood control district, created in 1949, took over inspection of this area from the city in 1963. Over the years, numerous inspections revealed that the culvert pipe was severely corroded. The plaintiff conceded the district did not own the culvert, but attempted to establish liability based on control.
The district had, several years earlier, agreed to assume full responsibility for creek channels once certain conditions were met and had assumed maintenance responsibility for some portions of the creek, but not for that portion running under plaintiff's home. The appellate court held that the plaintiff had failed to establish that the district controlled the culvert. "Nor are the inspections conducted by the District sufficient to show control of the culvert. The inspections were made either to implement the flood control objectives of the [flood control] project or in response to individual complaints. All of the inspections were necessary to insure effective, continued control of runoff waters. Despite appellant's arguments to the contrary, there was no evidence that the District controlled the culvert." (Chatman v. Alameda County Flood Control Etc. Dist., supra, 183 Cal.App.3d at p. 431.)
Similarly, in Ullery, the court concluded that, even though use of private land for a public purpose over time may constitute implied acceptance of an offer of dedication, the public entity must still take affirmative steps to exhibit dominion or control over the property through participation in its improvement, maintenance, or repair in order to evidence the public entity's acceptance and lead to a finding of public use. (Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-570.) The Court of Appeal held that the fact the subject property was part of the drainage system of a larger 40-acre watershed was not alone sufficient to overturn the trial court's finding of no public use in the absence of any exhibition of dominion or control by the public entity. (Id. at pp. 569-570.)
In DiMartino, a similar contention was made and rejected. The court stated: "The key question is whether connection of a private pipe segment to an admittedly public pipe segment converts the former to a public improvement. As the City points out, such a rule would allow circumvention of the Subdivision Map Act: a developer would no longer need to comply with requirements of dedication and acceptance, connection of any pipe on private property to a public roadway cross-culvert would transform the private pipe to a public one. We have found no case recognizing such a doctrine." (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 343.)
Appellants' reliance on Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, is misplaced. In that case, the property owners sued the city when their property was damaged by erosion caused by surface water discharged onto their property from a storm drain located on the property of an uphill landowner. (Id. at pp. 787-790.) The Skoumbas property was in the Oak Springs subdivision created in the 1920's, downhill from a different subdivision developed in the 1960's. That subdivision included Candlestick Road, a publicly dedicated street that ended in a cul-de-sac. Surface water from the surrounding area of the subdivision flowed onto Candlestick Road, and was collected in a catch basin that channeled the water into an underground metal pipe. The metal pipe ran underneath the subdivision and continued downhill into the Oak Springs subdivision. There it discharged surface water onto property uphill of the Skoumbas property that flowed down onto the Skoumbas property, causing substantial erosion and damage. The city admitted it owned Candlestick Road, the catch basin, and the first 40 feet of the drainpipe. The city contended that it was not responsible for any flow of water below the first 40 feet of pipe because the rest of the drainpipe was privately owned. (Id. at pp. 787-788.)
The Court of Appeal reversed summary judgment for the city, concluding that "the critical inquiry is not whether the entire system was a public improvement, but rather whether the [c]ity acted reasonably in its maintenance and control over those portions of the drainage system it does own." (Skoumbas v. City of Orinda, supra, 165 Cal.App.4th at p. 787.) The court relied on cases involving diversion of surface waters into a natural watercourse in applying a rule of reasonableness. (See Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 351 ["a landowner's conduct in using or altering the property in a manner which affects the discharge of surface waters onto adjacent property is subject to a test of reasonableness"].)
The critical difference between Skoumbas and the instant case is that in Skoumbas, the damage was caused by discharge of surface waters onto the Skoumbas property. Here, the damage to appellants' property, like the damage in DiMartino, was not caused by surface waters flowing onto the property, but by the failure of a drainpipe underneath appellants' property that was owned and controlled by the appellants. (See Skoumbas v. City of Orinda, supra, 165 Cal.App.4th at p. 795 ["Unlike DiMartino, this case does not involve the failure, replacement and relocation of a secret subterranean drain"].)
Appellants also argue that approval of the subdivision map triggers inverse condemnation liability when damage to adjacent property results from improvements shown on the map, relying on Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 733-734. As discussed above, this argument is foreclosed by the multitude of cases decided since Sheffet holding that inverse condemnation liability cannot be based solely on approval of subdivision maps. (Yox v. City of Whittier, supra, 182 Cal.App.3d at pp. 354-355; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 570-572; DiMartino v. City of Orinda, supra, 80 Cal.App.4th at pp. 339-340.)
Appellants' argument that the trial court erred in refusing to allow them to amend their complaint also is without merit. Appellants have had two opportunities to amend the allegations in the complaint and three different judges have found the allegations insufficient to state a cause of action. No inverse condemnation claim has been stated, nor can one be stated, because the undisputed facts show that the drainpipe was privately constructed and located on private land, the County expressly rejected the easement, and it has not exercised dominion or control over the pipe in any manner. A private drain on private property does not become a public work merely because public water drains through it or permits are issued for it. Liability is imposed only if the public entity has either accepted an offer of dedication or exercised dominion and control over the private drain. Because none of these conditions is present here, inverse condemnation liability cannot be imposed on the County.
B. The Tort Claims Verdict Was Correct
Like the claim for inverse condemnation, the gravamen of appellants' tort claims is damage they sustained to their real property as a result of the corroded metal drainpipe on their property. While, in some instances, liability against a public agency in tort may lie even though a claim for inverse condemnation will not, this is not such a case. The facts that preclude imposition of liability on the County for inverse condemnation bar liability in tort under the theories of dangerous condition of public property or nuisance.
Section 815 provides that a "public entity is not liable for an injury" "[e]xcept as otherwise provided by statute." Thus, in California "'all government tort liability must be based on statute [citation].'" (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)
Section 815.6 states: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."
1. No Dangerous Condition of Public Property
Appellants assert that the County is liable in tort under section 835. That statute provides that a public entity is liable for foreseeable injury caused "by a dangerous condition of its property" if the condition was caused by a negligent act or omission of an employee or if the public entity had actual or constructive notice of the condition in sufficient time to have taken appropriate precautions. (Mamola v. State of California ex rel. Dept. of Transportation (1979) 94 Cal.App.3d 781, 788.) The scope of government liability under section 835 and the extent of the duties imposed are questions of law. (Id. at p. 790; see also Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 ["Whether an enactment creates a mandatory duty is a question of law"]; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 860 [same].)
"Property of a public entity" or "public property" means property "owned or controlled" by a public entity. (§ 830, subd. (c).) Thus, section 835 permits suits against governmental entities for dangerous conditions of property, but only if the property is owned or controlled by the government entity. (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 900.) "For liability to be imposed on a public entity for a dangerous condition of public property, the entity must be in a position to protect against or warn of the hazard." (Mamola v. State of California ex rel. Dept. of Transportation, supra, 94 Cal.App.3d at p. 788.)
As discussed earlier, there was no evidence that the County owned or controlled the drainpipe. The evidence showed that the County had expressly rejected the subdivider's offer of dedication of the drainage easement at the time it approved the subdivision map. There was no evidence that the County asserted any control over the easement or drainpipe in any other manner. (See Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 988, fn. omitted ["A public entity is liable for dangerous conditions on property it owns [citation] but not for dangerous conditions on private property"].)
Appellants assert that the County's failure to exercise control over the easement and drainpipe should subject it to liability because it had an affirmative duty to maintain the drainpipe. We disagree. Only an express acceptance or acts of dominion or control over the pipe could have created such a duty. Absent such a duty, there is no basis for holding the County liable for damages caused by corroding of the pipe.
Appellants attempt to circumvent this obstacle by arguing that the County's ownership of Otero Court, the drain opening and drain inlet within the street right-of-way is sufficient to impose liability for damages caused by failure of the private drainpipe. It is a correct proposition of law that property of a public entity may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury. (Mamola v. State of California ex rel. Dept. of Transportation, supra, 94 Cal.App.3dat p. 791.) However, there was no allegation or evidence that the street, the drain opening or the drain inlet in the right of way malfunctioned, was maintained improperly, or caused the landslide.
2. No Nuisance
Appellants' second tort theory is based on nuisance. (Civ. Code, § 3479.) They contend that the public storm water draining through the drainpipe on their property caused the landslide and interfered with their comfortable enjoyment of life. Like the dangerous condition of public property cause of action, the nuisance claim is defeated because there was no allegation or evidence that County-owned property--i.e., the street, the drain opening or the drain inlet in the right of way--malfunctioned, was maintained improperly, or caused the landslide. (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 384 ["We deem it proper in this case where the action is based on a claim of a defective condition of public property to follow the reasoning of the Mikkelson [v. State of California (1976) 59 Cal.App.3d 621] court and find the plaintiffs have no cause of action under a nuisance theory"].)
Another obstacle to recovery under a nuisance theory is contained in Civil Code section 3482, which states that "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." The California courts consistently hold that alleged nuisances arising from the construction, operation and maintenance of streets and highways to be within the protection of Civil Code section 3482. (Dina v. People ex rel. Dept. of Transp. (2007) 151 Cal.App.4th 1029, 1052; see also Longfellow, supra, at p. 385 ["Streets and Highways Code section 27 provides that: 'The degree and type of maintenance for each highway, or portion thereof, shall be determined in the discretion of the authorities charged with the maintenance thereof, taking into consideration traffic requirements and moneys available therefor.' It is clear that the location, scope and character of street maintenance and repair work is discretionary and not mandatory in nature"].)
Because the factual predicates for appellants' tort claims do not exist and the County has no liability as a matter of law, appellants' assertions that the trial court erred in excluding evidence and instructing the jury necessarily fail.
CONCLUSION
The County cannot be liable for the malfunction of a private improvement on private property in the absence of an exercise of a dominion or control. Under the undisputed facts of this case, the County's tort liability was subject to determination, and could have been determined, without the expenditure of time and money a jury trial entailed.
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: YEGAN, Acting P.J., COFFEE, J.