Williams v. Foster, H003469

• Citation: 216 Cal.App.3d 510,265 Cal.Rptr. 15
• Decision Date: 08 December 1989
• Docket Number: No. H003469,H003469
• Court: California Court of Appeals
• Parties: Dennis W. WILLIAMS, Plaintiff and Respondent, v. Calvin FOSTER, Defendant and Appellant; City of San Jose, Defendant and Respondent.

Page 15

265 Cal.Rptr. 15

216 Cal.App.3d 510

Dennis W. WILLIAMS, Plaintiff and Respondent, v. Calvin FOSTER, Defendant and Appellant City of San Jose, Defendant and Respondent.

No. H003469.

Court of Appeal, Sixth District, California.

Dec. 8, 1989.

Williams, Kelly, Polverari & Skelton, Steve Defillipis, Thomas J. Burns, San Jose, for defendant and appellant.

Joan R. Gallo, City Atty., Laurence L. Spitters, Jr., George Rios, Deputy City Attys., for defendant and respondent.

John W. Coakley, San Jose, for plaintiff and respondent.

Louise H. Renne, City Atty., John A. Peak, Deputy City Atty., for City and County of San Francisco, Marc G. Hynes, City Atty., for City of Morgan City, James P. Jackson, City Atty., Lawrence M. Lunardini, Deputy City Atty., for City of Sacramento, amici curiae on behalf of defendant and respondent.

CAPACCIOLI, Acting Presiding Justice.

This case involves a negligence action filed by Dennis Williams, an injured pedestrian, for damages resulting from a trip and fall accident on a public sidewalk against the City of San Jose and Calvin Foster, the owner of the property abutting the defective sidewalk. Apparently, the surface of the sidewalk had been made uneven by the roots of a tree planted on the parkway in front of Foster's property. ¹ San Jose and Foster cross-complained against each other for indemnity. By special verdict, the jury found Williams 30 percent at fault and Foster and San Jose each 35 percent at fault. Williams obtained a judgment making the City of San Jose and Calvin Foster, jointly and severally liable for economic damages of $15,928.98, the City of San Jose severally liable for noneconomic damages of $16,590, and Foster severally liable for noneconomic damages of $16,590. ² Neither San Jose nor Foster obtained a judgment for indemnity.

Foster appeals. ³ The principal issue on appeal is whether the duty of abutting landowners to maintain and repair the public sidewalk fronting their property established by Streets and Highways Code section 5610 ⁴ or by San Jose Ordinances ⁵ is owed to members of the public. Foster contends the duty is owed only to the City of San Jose. He also contends that if the San Jose ordinances do create such a duty to members of the public, they are invalid because they in effect "pass on" liability to the abutting owners for unsafe sidewalk conditions and, therefore, conflict with the Governmental Tort Claims Act which concerns governmental liability, an area of statewide concern upon which charter cities may not legislate. Foster asserts that, in the absence of an affirmative duty to the members of the public under statute or ordinance, the trial court erred (1) in denying his motion for nonsuit and (2) in reading to the jury, over his objection, section 5610, the relevant portions of the San Jose ordinances, and an instruction that an abutting owner is under a duty to keep the sidewalk in a safe condition if the duty is delegated to the owner by statute or ordinance. ⁶

The court also instructed regarding the negligence per se presumption as to the San Jose ordinances. ⁷

We reverse the judgment against Foster.

I Duty of Maintaining Public Sidewalks

At common law, abutting property owners and occupants had no affirmative duty to maintain or repair a public sidewalk and were not liable for injuries occurring there which resulted from the mere failure to maintain it. (Martinovich v. Wooley (1900) 128 Cal. 141, 143, 60 P. 760; Eustace v.Jahns (1869) 38 Cal. 3, 14-15.) The common law governs in the absence of legislation on the subject. (Ibid.; see Estate of Apple (1885) 66 Cal. 432, 434, 6 P. 7.) Of course, an abutter has always been liable for injuries occurring on a public sidewalk which were caused by the abutter's negligence or nuisance involving some act or omission other than the mere failure to maintain or repair the sidewalk. (See e.g. Lee v. Ashizawa (1964) 60 Cal.2d 862, 863-864, 37 Cal.Rptr. 71, 389 P.2d 535; Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 423, 260 P.2d 55; Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 809-810, 155 P.2d 633; Granucci v. Claasen (1928) 204 Cal. 509, 512, 269 P. 437.)

In Eustace v. Jahns, supra, 38 Cal. 3, the issue was whether "... an owner of a lot fronting upon a public street in the City and County of San Francisco [had] the duty to repair a defect in such portion of that public street upon which his lot abuts or fronts" where there was no notice of repair from the Superintendent of Streets. (Id. at pp. 14, 16.) The California Supreme Court stated that the common law did not impose the duty to repair a defective public street upon the abutting owner and any such duty would have to be found in the statutes. (Id. at pp. 14-15.)

The court examined the statutory city and county charter of San Francisco as amended and found that it did not impose any duty upon the abutting owner except the duties to pay assessments and to perform special local repairs upon notice by the Superintendent of Public Streets and Highways. (Id. at p. 15-16.) It stated that it was not aware of any ordinance imposing a general duty to repair in the absence of such notice. (Id. at p. 17.) It concluded: "[W]e are unable to comprehend by what process of ratiocination the duty to repair a public street or highway is devolved upon an individual from the fact that he is liable to be notified by the Superintendent of Streets to make specific repairs, or owns or occupies a lot liable to be assessed to defray the expenses of repairs, when made by another at the instance of the Superintendent." (Id. at p. 19.)

Martinovich v. Wooley, supra, 128 Cal. 141, 60 P. 760 involved an injury resulting from a defective sidewalk in the City and County of San Francisco. (Id. at pp. 142-143, 60 P. 760.) A judgment in favor of the abutting property owners was entered following the trial court's order sustaining a demurrer and the plaintiff's failure to amend. (Id. at p. 143, 60 P. 760.) The California Supreme Court stated: "A sidewalk is part of the highway. [Citation.] At common law, no duty was cast upon the owner of the abutting property to maintain the street in good repair. If such duty exists in this state it must be by virtue of some statutory enactment.... As no ordinance of the city and county of San Francisco bearing upon the question is pleaded in the complaint, we have recourse to the general street law for the provisions regulating and governing this question." (Id. at p. 143, 60 P. 760.) It noted the general street law expressly imposed liability upon the property owner for injuries resulting from any defect in the street fronting his property where the defect existed for 24 hours or longer following notice to repair from the Superintendent of Streets. (Id. at p. 143, 60 P. 760.) It then found Eustace v. Jahns, supra, controlling and declared: "To impose a liability upon defendants, it was incumbent upon the plaintiff to show that the notice to be given by the superintendent of streets had been given and had been disregarded for the specified time. This is nowhere averred." (Id. at p. 144, 60 P. 760.) The court affirmed the judgment. (Ibid.)

In the landmark case of Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 146 P.2d 929, an appellate court held that Section 31 of the Improvement Act of 1911 as amended in 1935, which required abutting owners to maintain the public sidewalk in a nondangerous condition and a condition which did not interfere with the public convenience and to timely perform repairs upon notice from the superintendent of streets (stats.1935, ch. 771, § 2, pp. 2148-2150), ⁸ did not create a duty owed to members of the public using the sidewalk. (Id. at pp. 326-332, 146 P.2d 929.) The court noted that, unlike the statute in Martinovich v. Wooley, the statute in question did not expressly impose liability on the abutting owners for injuries resulting from defects in the sidewalk nor did it provide that the abutting owners' duty to repair was owed to travelers on the sidewalk. (Id. at pp. 330-331, 146 P.2d 929.) Upon reviewing the case law of other states regarding the interpretation of similar statutes, the court found that "... the overwhelming weight of authority is to the effect that a statute which requires abutting owners to maintain and repair sidewalks adjoining their premises, such work to be done by the municipality at the expense of the abutting owners in case of their failure to construct or repair, does not impose liability upon such owners, either to travelers or to the city, for injuries incurred by reason of the defective sidewalk. [Citations.]" (Id. at pp. 327-328, 146 P.2d 929.) The court concluded: "[Section 31 of the Improvement Act of 1911] was not passed for the purpose of transferring the primary duty to repair sidewalks to the property owners, and to relieve the city of that primary duty and responsibility. The obvious purpose of the statute was to provide a means of reimbursing the city for the cost of the repairs. To impose a wholly new duty upon the property owner in favor of third persons would require clear and unambiguous language." (Id. at pp. 331-332, 146 P.2d 929.)

Streets and Highways section 5600 et seq., which concerns the maintenance of sidewalks and was added in 1941, is derived from the Improvement Act of 1911 as amended. (See Stats.1911, ch. 397, §§ 31 and 32, pp. 747-749; Stats.1935, ch. 771, §§ 2 and 3, pp. 2148-2151; Stats.1939, ch. 508, §§ 1 and 2, pp. 1886-1889; Stats.1941, ch. 79, § 1, p. 873-877.) Section 5610 states the duty to maintain the sidewalk in essentially the same language as section 31 of the Improvement Act of 1911 as amended in 1935.

Foster contends that the holding of Schaefer v. Lenahan, supra, 63 Cal.App.2d 324, 146 P.2d 929, is applicable to section 5610 and, by analogy, to the San Jose ordinances. Therefore, any duty thereunder is not owed to members of the public.

Both Williams and San Jose argue that Foster is liable...