Photograph by Juliet Sanders

“It was a normal beach day gone awry.”

The cliff collapse

On August 2, 2019, at around 1 pm, Dr. J. Patrick Davis, his wife, Julie Davis, Julie’s sister, Elizabeth Charles Cox, and Pat and Julie’s daughter, Annie Davis Clave — all three of them mothers — accompanied by Pat and Julie’s adult daughter, Elizabeth McCullagh, a dozen wave-tagging kids and several neighbor moms, 20 in all, descended a four-sectioned, rickety stairway to picnic on Grandview Beach at the north end of Encinitas. The Davis, Cox, and Clave families were in high spirits. They were celebrating a milestone: Elizabeth Cox’s breast cancer, following a long stressful treatment, was in remission.

Photograph by Juliet Sanders

Above them towered a sandstone cliff 80 feet high. That summer at Grandview, thousands of beachgoers flipflopped down the zigzag stairs to the sand; they may or may not have noticed a sign warning that the cliffs along the narrow beach were unstable. In fact, Annie, Pat and Julie’s daughter, asked the lifeguard Quinn Norwood, stationed in his tower with a broad beach overlook, for the best place to set up. He said — this according to Davis family members — to nestle their chairs, towels, surfboards, toys, and umbrella against the sea-cliff toe, an exposed spot at the base of the cliff-face, about 30 feet from his tower.

(In his deposition, Norwood admitted that in lifeguard training, he is told to advise people when he can to stay 10 to 15 feet from the cliff base because being too close is dangerous. “Rocks can tumble,” he said. Especially along the narrow Grandview Beach. He noted, however, that to warn of a potential “collapse” is not his “primary duty.” His duty, “95% of my job,” is to watch swimmers and surfers and notify them about risky rip currents. He said that he didn’t remember telling the Davis cohort to choose any particular place. The families dispute this.)

Under a blistering sun, a spotty wind tussled about, but the scene was serene. Tucked under the notch, the assembled party had a panoramic view of their kids playing in the waves breaking on shore, teens waist-deep in the littoral ebb and flow, and veteran family surfers riding five-foot swells. The day pearled with sunshine. The high tide was receding, retired pediatric dentist Pat Davis said in interviews and depositions. He knows the vicissitudes of North County beaches from his regular visits over 50 years.

At 2:54 — cracked watches fixed the time — approximately 15 feet above the families, an outcropping of the cliff suddenly severed, unloosing a block of cemented sandstone, 15-20 cubic yards, or 50 tons, a hard bluff-bottom layer called the Santiago formation. No one knew whether this chunk, crowned and crowded with ice plant, had begun fissuring 100 or 1000 years ago, or even from an unfelt tremor just that morning. No one knew — though many coastal geologists suspected — how saturated the cliff base was with groundwater. No one knew whether the wedge’s mass had split internally, creating a “failure plane” and leaving it ready to cleave. Whatever it was, in that moment, the chunk — as heavy as two full garbage trucks — shrugged and fell forward.

In its coverage, San Diego Union-Tribune reporters as well as witnesses who were interviewed later described how the three adult women were sitting close together. As they toasted Elizabeth Cox’s good “cancer news” and the children scampered around the picnic spot, Pat was positioned next to his wife Julie. When the sandstone bulk broke and fell, he was left untouched. But Julie was buried. He frantically dug through the sand, seeking to dig a hole through which she might breathe. He clawed and clawed, but he couldn’t reach her. Then, turning to “his cherished daughter Annie,” who was also trapped beneath the fallen earth, he cradled her head in his lap. A reporter wrote that as he held her, “her blood seeped into his lap and clothing.” Close by, Elizabeth’s daughter, Rachel Cox, had been seated near her mother when the chunk fell. Her injuries took her to the hospital, but not before she glimpsed part of her mother’s body in the rubble. Most of the kids, including Pat and Julie’s grandchildren, were in the water or moving toward it. Annie’s daughter and son, five and seven, stood near their mother’s chair moments before the collapse. As luck or fate would have it, they had stepped away.

Dead — at the scene or after being transported to the hospital — were sisters Julie Davis, 65, and Elizabeth Charles Cox, 62, and Pat and Julie’s daughter, Annie Davis Clave, 35.

Just one month after the accident, then-Encinitas mayor, Catherine Blakespear, walked the beach with Pat Davis. He said she offered to improve the “signage” on the beach and promised she would “run it by me to see if you think the language is strong enough.” He never heard from her again.

Photograph by Juliet Sanders

According to Pat Davis and plaintiff lawyers as well as court filings, depositions, and videos, Rachel Cox, the surviving daughter of the deceased Elizabeth Cox, incurred extreme mental anguish the moment she saw the severed body of her mother, seconds after the collapse. The cause of Elizabeth Cox’s death was “multisystem blunt force crushing injuries due to complete body fragmentation.” Her heart was never recovered.

The Union-Tribune’s online headline quoted a nearby resident, Jim Pepperdine. He’d heard the sirens on Neptune Avenue, the long one-way street on the blufftop, biked past palm trees and the colonies of invasive ice plant that drape over many cliff faces, and ran down the three-decade-old stairs. On the beach, he saw the sandstone monolith. Later, a reporter asked him to describe what he saw as he watched first responders scramble to disinter whoever was under the blockfall.

Pepperdine summed up the tragedy with grim humor: “It was a normal beach day gone awry.”

Liabilities

“Normal” beach days notwithstanding, Southern California’s oceanside cliffs are fissure-prone. Sun and wind erode them, while water tapers their faces into rills and seeps into their presumed solidity. Small chunks often separate and fall, but rarely does a 50-ton block give way. There was, most likely, a complex amalgam of causes: permeable terrace deposits on top; landscape and lawn overwatering (in one year, up-top grasses might absorb the equivalent of 50 inches of rain); the tonnage weight of irrigated ice plant and palms; and the pressure of homes and condos and parking lots plunked on top — the all-too-typical composition of San Diego’s residential and urbanized coast. When the tragedy was examined in light of the law, the key questions were: who was responsible for this coastal crime against the 10 plaintiffs? Should up-top home and condo owners be held accountable for damages to the people on the beach below? And what significant remediation efforts could state and local governments offer to lessen or prevent such catastrophes?

In August 2020, one year after the tragedy, Athena Trial Lawyers filed a lawsuit on behalf of “10 plaintiff-family members,” which involved the Davis, Cox, and Clave families — six surviving adults and four children, the latter named in the claim but not identified here. (For the sake of simplicity, I’ll refer to the case as the Davis lawsuit.) Under the direction of personal injury attorney Bibi Fell, who specializes in cases “for those who have lost loved ones,” the suit alleged that the 10 suffered “bystander emotional distress” and possessed “wrongful death claims.” The plaintiffs argued that the collapse was the responsibility of four defendants, entities who willfully neglected to keep the Grandview beach safe and were, therefore, liable. Two were the Leucadia-Seabluffe Village Community Association, owners of the property at the top of the cliff, above the blockfall, and the Seabreeze Management Company, caretakers of the properties and landscaping. The other two were the city of Encinitas and the state of California’s Department of Parks and Recreation.

California Penal Code 831.2 states, “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property.” The public entity here was the city of Encinitas — and the lifeguard Quinn Norwood, the city’s employee. The Davis lawsuit argued that two tenets of the code were violated: The Grandview cliff was not in its “natural condition” and its property was not “unimproved.” In short, the cliff had been tampered with — de-stabilized — for decades. (Much of the California coast, under private control, has also become geologically dysfunctional due to shoddy human fixes.)

Grandview Beach is owned by the state. Under an arrangement between the state and the city of Encinitas, Encinitas agreed to “develop, operate, control and monitor” the beach “to minimize potential hazards to public health, safety, and welfare and to prevent the loss of life and damage to health and property resulting from both natural and man-made phenomena.” This agreement included the staircase.

Southern California oceanside cliffs are fissure-prone. Sun and wind erode them while water tapers their faces into rills and seeps into their presumed solidity.

Photograph by Juliet Sanders

The Athena complaint asserted that the four defendants were responsible separately for monitoring the cliff’s stability. Had the bluff been left in its untainted state, it would have possessed “natural” immunity — a legal status, albeit a confusing one. But once a beach access site is “improved,” that is, altered and built on, remediated and overwatered, that status becomes contestable. Improvements subjected the cliff to stressors beyond what the access site could handle. In sum, the suit alleged that the four entities surrounding the August 2019 collapse created “an unnatural, unstable, and unsafe urbanized cliff,” aptly termed “a death trap.”

It’s typical for an injury lawsuit involving negligence and the loss of life to limp along through mediation and court challenges, sometimes for years. It grows untypical when the case, as the suit alleged, interlocks “decades of conflict between the competing interests of municipalities, beachfront property owners, interest groups, and the state of California.”

Loss and justice

While waiting for a proposed settlement to pass muster in Sacramento this summer, I met with Pat Davis in the Mission Valley office of Bibi Fell’s firm, Fell Law. Now retired, Davis headed a pediatric dentistry group in Encinitas for more than 45 years; his sons continue to practice there. He is a fit man, a bike enthusiast who since the tragedy has eased into a degree of provisional wisdom, but also tears up by memories of the three women he lost. His wife and her sister was “bad enough,” he said. But to think about “my beloved daughter...”

Davis was eager to outline, and comment on, the history of the three families’ lawsuit. Just one month after the accident, then-Encinitas mayor Catherine Blakespear walked the beach with him. He said she offered to improve the “signage” on the beach and promised she would “run it by me to see if you think the language is strong enough.” He never heard from her again. Davis contacted Mike Levin, U.S. Congressman from District 49, now redistricted, San Juan Capistrano to Solana Beach (result: more coast). A month later, Levin read a statement in Congress about Davis and the families’ loss and pleaded for money to help remediate San Diego beaches and bluffs. (Levin has helped secure federal dollars for sand replacement projects.) In February 2020, Davis testified before Congress about the dangers of the bluffs. (He got to attend President Trump’s State of the Union address, the “one where Nancy Pelosi ripped it to shreds.”) He met with Republican State Senator Pat Bates and testified twice before the state senate in Sacramento. Bates, prior to her retirement, proposed bills that would allow “cities, the state, and homeowners to protect their bluffs” for the safety of “people down below.” Small world — today, Bates’ seat is occupied by Blakespear.

Survivor testimony detailing the horrors of the collapse, plus the scientific evidence, was “easily winnable,” said attorney Bibi Fell.

Photograph by Juliet Sanders

After hearing a host of big-talk, little-do promises, Davis, as he said, now advocates for beach safety himself. To turn the tragedy into a “cause” is energizing. But activism also creates a paradox. Haranguing the Encinitas city council to tighten regulations on behalf of its citizenry gave Davis purpose and voice. But it also waylaid his despair, which, he said, accumulated inside him.

Nearly all accident-chasing attorneys who explored a potential lawsuit told Davis that “‘because of these huge immunity factors that [defendants’ attorneys] will throw into these things, you’ll never get anywhere.’” He decided on the Athena Trial Lawyers, an all-female firm, and Bibi Fell, who understood there was “enough negligence” to proceed not to settlement but to trial. Survivor testimony detailing the horrors of the collapse, plus the scientific evidence, maent the case was “easily winnable,” Fell said. Everyone’s confidence in the case drove the plaintiffs’ moral engine for the first few years. But, eventually, after unending stipulations, dismissals, motions, and other entanglements, their stalwart resolve began to wane, and a settlement grew likely.

While neither Davis nor Fell would comment on the negotiations, Davis brought up the money, which he said would be sizable. “Not that I’m going to expect any particular dollar amount,” he noted, “but $100 million isn’t a just amount of money for three women’s lives.” He continued: “Whether it’s $200 or $300 million — that means nothing. Money was never my intent.” His family’s goal was “some” — he paused, I thought, to weigh the strange bond between loss and justice — “some satisfaction, some justification, for these women and why they died.”

History lessons

In Encinitas, there are six access points to the water, all noted surf spots, each with its own geographic turn of tide and gratuity of sand: from south to north, there’s Swami’s, “D” Street, Moonlight, Stone Steps, Beacons, and Grandview. Grandview Beach is the county’s narrowest beach abutting one of the region’s highest bluffs. In 1978, as condo complexes and apartment buildings proliferated along the clifftops, a staircase was built from Neptune Avenue in Leucadia down to the beach. Rain and wind during the violent 1982/1983 El Nino winter battered the stairs.

On April 1, 1983, according to the deposition of Sydney Brown, retired geologist with the California Department of Parks and Recreation, “an 82-foot-long section of the sandstone sea cliff fell against the lower portion of the stairway and knocked down three of the four pilings.” The chunk that fell stuck out “about 19 feet seaward” and came down from “20 feet up.” Several people were injured, one suffering a broken leg. Brown noted that the rupture of “joints” in the Santiago Formation begins when water in the terrace deposits “percolates” to the cliff base, collecting in a “perched water table.” There, the cliff undergoes a “cementing” process as “iron oxide minerals” in the sand shrink and swell its grains; these, in turn, harden into “parallelograms” and begin to fissure “in predictable ways,” from small to large to very large. In 1984, there was another blockfall at Grandview. It was 102 feet long.

Pat Davis stands near the scene of the accident.

Photograph by Juliet Sanders

While Brown acknowledged that blocks have let loose for thousands of years and that rain can swamp the mostly steady perched table, the past half-century of urbanization along North County’s cliffs has destabilized the bluff far more than nature would have, had they been left alone. “Once a slight preference is found,” Brown stated, and the cliff’s bedrock is pulled seaward, “that becomes even more the preference.” Her 1983-1985 report warned: “Do not reinstitute public access down the bluff” at Grandview.

Five years later, a consultancy firm dug into the cliffside and found it “had numerous points of weakness ...including...extensive groundwater seepage [from] excessive watering of lawns and nonnative vegetation,” not to mention “onsite sewage disposal (septic tanks, leach lines, and cesspools).” According to the Davis lawsuit, “On the day of the [1983] incident, the ice plants added approximately 286 pounds of downward pressure on” that year’s blockfall. What’s more, Phillip Broderick, who owned the land on which the staircase sits, tried to sell the land to the city, expressing “concern over the liability, considering the past history of the stairs.”

Another five years, and the stairway, both opposed and championed, was finally rebuilt, with massive lag bolts to hold it up. Geologists recommended sinking the pillars 70 feet down; the engineers sunk them (the pillars, not the geologists) 35 feet. A seawall was built and sealed at the base with eight drainage pipes. Those fortifications, according to Fell, were done on the south side of the staircase; the 2019 cliff collapse occurred just north of the stairs. What’s more, landscapers planted ten palm trees and other flora on top of the cliff, apparently, forgetting that more plants take more water and more water may collect in the sandstone. Who knows why these additions, ranging from necessary to half-assed, were piled on. One result: a cliff consultant declared in 1992 that “the structural life of the Grandview Stairway [was reduced] from 50-75 years to 10-20 years.”

A geologist described another effect of these fixes. As water leeched out onto the vertical surface, the cliff-face became grooved with runnels, the starkly ugly hourglass shapes called “drip castles.”

Bluffs regularly erode, crumble, slip, and fall along California’s 1110 miles of coastline and 850 public access beaches. To hold back the slow disintegration, ten percent of the coastal bluffs are armored. Fell said that the most agreed-upon cause of blockfalls, at least in San Diego County, has been slapdash “improvements” and the flipside, “neglected maintenance.” That dire mix was compounded by other stressors up top where the homes sit: concrete brow ditches, multiple irrigation systems, disintegrating storm drains, rusting corrugated pipes, rodent abatement systems, parking lots, potholes, sinkholes, septic tanks, and asphalt cracks on Neptune Avenue. (In fact, a storm-drain some 400 feet from the August 2019 collapse not only was leaking that day but had been leaking “for approximately 50 years.”)

Moreover, according to a report in 2017, the landscaping “managing agent” Seabreeze revealed “evidence of bluff destabilization” from a review into its own overwatering (!). Even after their finding, the company failed to stop or fix what the loosened soil had undermined. (That the water has soaked into the “no-man’s land” of the sandstone’s interior is not a defensible position.) Fell’s complaint notes that Seabreeze’s “monthly water usage went up, not down, presumably placing property aesthetics over human life.”

So egregious was the problem that the lawsuit alleges the “bluff destabilization put, or should have put, Seabreeze on notice that water from [the up-top condo] Seabluffe was likely seeping into the bluff” and, as a result, the city’s engineering department “should have closed the beach or limited access to it.” Despite varying degrees of responsibility and liability, Fell asserted in the suit that all four defendants’ conduct “was willful, intentional, and with a conscious disregard for the safety of others,” Their collective failure to “take protective measures” hurried the cliff chunk to fall, period.

Immunities

Perhaps the biggest headache in the Davis case was the question of immunity: who had it and who didn’t and wished it did. Immunity means not liable for monetary damages in the event of injury or death. Bibi Fell outlined the basic concept. State entities who own, lease, or maintain coastal real estate “promote public access and open up its land resources for enjoyment by the public without heaping onto the state a ton of liability.” Some suits for negligent death have been successful; most have not. The law is complex, perhaps overly so, because two disparate forces collide: one, Mother Nature, who harms with rare or no warning, and two, human improvements or indifference to coastal wear-and-tear. I sought counsel for further clarity.

I gained it from C. Brant Noziska whose law firm specializes in “complex civil litigation” and “public entity liability.” In an email, he said that the state “can only have liability when it fails to do something it is mandated to do, a so-called ministerial duty.” An example: the state or a city is ordered to inspect a problematic construction project on a beach property. “If they inspect but do so negligently, they are immune. But if they fail to inspect and are under a mandatory duty to do so, then they have liability from their failure to inspect.”

Contrast that with “discretionary immunity,” the means by which the California Coastal Commission grants permits for state and local beach-related development and protects itself. (The commission was not a defendant in the Davis lawsuit.) In general, Fell said, the courts have ruled that the commission shouldn’t be punished for a “good-faith decision” when it tries to fix a problem and fails. But Noziska notes that there are exceptions. “If an unreasonable maintenance of drainage facilities causes or contributes to a failure, they can be liable for the failure. So, if the city storm drain leaks and saturates the bluff and it causes a loss of strength, that can trigger liability because of the dangerous condition of public property.”

Another rub: the Coastal Commission has instituted a policy of “managed retreat” along the coast. Nature is eroding the cliffs, and the agency’s policy is to let this happen—not to fortify the cliffs, but to facilitate “people, structures, and infrastructure” moving inland. This is not happening, however, in Del Mar, where SANDAG is spending $78 million to drill shafts and pour concrete for new pilings to prop up the train tracks — in effect, to stop the bluff’s retreat. That public right-of-way required an exemption from the commission. And yet, cliffside homeowners constantly petition the agency to allow them to shore up their residences with seawalls and other fixtures, and are routinely denied, vis-à-vis the policy, unless there’s “an imminent danger of harm.”

The Surfrider Foundation opposes coastal fixes at state beaches and prefers as much robust retreat as possible. Surfrider refuses most alterations of the beach’s “natural” condition, which for them is protected by its recreational value, i.e., legacy surfing spots.

The lawsuit alleges the “bluff destabilization put, or should have put, Seabreeze on notice that water from [the up-top condo] Seabluffe was likely seeping into the bluff.”

Photograph by Thomas Larson

Davis disagrees with the Surfrider’s mission: Erecting seawalls at the cliff-base — to restrain blockfalls and the pummeling, wintery waves of El Niño — is, he said, “a no-brainer.” It’s one defensive option that’s been proven to hold back cliffs, at least, in the near term. He emphasized that the changes the families wanted in the settlement were central to human safety. “It’s not about surf breaks. It’s not about being able to have an area for people to sunbathe. It’s about creating spots for people to gather and feel safe.”

Aftermath

Concern for those he loves is everything for Davis. He described raising his kids in Encinitas, after which his sons went to dental college, returned, married, and still live and work locally. The clan still gathers at the beach. How often over the years? “Thousands of times,” he said. Did he ever set up next to the cliff for a picnic? No, he said.

That afternoon, August, five years ago, the tide was going out, and the beach was exposing its stone riprap. The group of 20 picnickers set up under a step-toe, 20 yards from the lifeguard tower. Soon, a dozen kids had slathered on sunscreen and were playing tag with the waves. “I remember [a moment] between five and 10 minutes before,” Davis said. “The cooler was behind Julie’s chair, and there were probably two or three little girls getting drinks. Annie was sitting right next to Julie. I was sitting on the other side of Julie, and Betsy [Elizabeth Cox] was on the other side of Annie.” No warning. No sound. “The huge chunk of it,” he winced, “broke off and then slammed forward like that. All at once. All at once.” He stopped. “I’d rather not get into the scene as it happened.”

Davis spoke of the character of the three women whom he called “one-third of the family. Julie was the love of my life. I fell in love with her in the first hour I met her. We had four wonderful kids, all super-good students, respectful, loving children, all married, respectful loving spouses.” Julie’s sister Elizabeth, a psychotherapist who resided in San Francisco with her husband and adopted kids, used to summer in Encinitas and bought a house near Grandview to be close to where Annie lived.

A kind of shimmying sorrow swept over him, and he gave in — to feel in words, just for an instant, grief for his daughter Annie, “our baby, the glue who held our family together. Everybody loved her.” On her birthday every year, the family holds a get-together in Annie’s honor. “Eighty friends came, last time.” He still gets letters from her college mates: “She was the one girl in the sorority who the other girls really wanted to become best friends with.” Annie managed Davis’s Encinitas dental practice — four Davises working together. “A people pleaser, organizing our office, saving us money. What a talent.”

Matt, one of Annie’s two older brothers, told his father after Annie died, “‘Dad, I hate going to work. Dad, I have to look at her chair’...That’s really hard for him—and everybody. It’s gotten easier over the years, but I tell you, it’s...”

Next week: Pat Davis visits the site of the August 2019 cliff collapse and the plaintiffs reach a multimillion-dollar settlement with the state of California and the city of Encinitas.