Pianka v. State of California

GIBSON, C. J.

Plaintiff, a minor, is seeking damages for personal injuries resulting from the explosion of a shell which was left by the National Guard on a public firing range of the city of Yreka at the conclusion of a public demonstration. Defendants, without filing an answer, raised the defense of sovereign immunity by means of a motion to dismiss supported by an affidavit. The court granted the

[210]

motion, and plaintiff has appealed from the judgment of dismissal.

The complaint alleges that the firing demonstration was held for the entertainment of the public generally, that it was widely advertised in the local newspapers and that all members of the public were invited to attend. It is further alleged that defendant negligently left an unexploded shell on the public firing range where it would be attractive to young children and that, as a proximate cause of such negligence, plaintiff was injured. A claim, which was duly served and filed pursuant to section 16041 of the Government Code,

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was denied.

The affidavit in support of the motion to dismiss stated that the firing demonstration had been conducted solely for the purpose of gaining recruits for the National Guard and that no admission charge was made.

The state and its agencies are immune from liability for tort in the discharge of governmental duties and activities, but liability exists for negligence in connection with proprietary activities such as the operation of an industrial or business enterprise. (Gov. Code, §16041;

Guidi

v.

State,

41 Cal.2d 623, 625 et seq. [262 P.2d 3];

People

v.

Superior Court,

29 Cal.2d 754, 757 et seq. [178 P.2d 1, 40 A.L.R2d 919], and cases cited.) Governmental immunity turns on the nature of the particular activity that led to the injury, not on the identity of the governmental subdivision or agency carrying on the enterprise, and it has been held that the state may be acting in a proprietary capacity when it enters into activities designed to amuse and entertain the public.