County of San Joaquin v. Stockton Swim Club

Opinion

FRIEDMAN, J.

Under statutes authorizing joint exercise of powers by public agencies (Gov. Code, §§ 6500-6514), the City of Stockton (City) Stockton Unified School District (School District) and County of San

[971]

Joaquin (County) entered into a contract for the coordinated operation of public recreational facilities in the Stockton Metropolitan area. The contract provided for the establishment of an agency designated as Stockton Metropolitan Park and Recreation Commission (Commission) as the program’s operating agent. Commission consists of seven persons designated according to a procedure described in the contract.

The Commission operates direct recreational programs and also permits the publicly owned recreational facilities under its control to be operated by sponsoring organizations. The Stockton Swim Club (Swim Club), a nonprofit corporation, was established as such a sponsoring organization by a group of parents who wanted their children to receive a higher level of training in swimming and diving than that supplied by the Commission’s direct programs. In 1966, as in previous years, Swim Club signed an application and contract for the use of certain swimming pools, including Stagg Pool which was owned by the Stockton Unified School District. The contract was on a standard form supplied by the Commission. It included a clause wherein the sponsoring organization agreed to hold the public agencies “free and harmless from any loss, damage, liability, cost or expense that may arise during or be caused in any way by such use or occupancy of the property.”

In January 1967 Janice Arellano, an 11-year-old girl who belonged to the Swim Club, was seriously injured while using a diving board at Stagg Pool. She brought a personal injury action against Swim Club, Commission and the three public entities which had formed the commission, alleging defective condition of the facilities, negligent supervision and negligent rescue activities. The case went to trial before a jury. During the trial, the plaintiff dismissed her action against the public agencies for dangerous condition of the property and for negligent rescue. The jury returned a verdict in favor.of all defendants.

Meanwhile, the City, County and School District and the Commission had tendered the defense of the Arellano suit to Swim Club, which rejected the tender. The public agencies cross-complained against Swim Club, seeking indemnification for any judgment and for expenses of defending the lawsuit. After the verdict the court heard the issues presented by the cross-complaint and rendered findings and a judgment against Swim Club for defense expenses (including attorney fees) incurred by the County, School District and Commission in the Arellano lawsuit. The City had dropped its indemnification claim on the ground it had incurred no expense. Swim Club appeals from the indemnification judgment.