Rowan v. City and County of San Francisco

• Decision Date: 18 August 1966
• Citation: 244 Cal.App.2d 308,53 Cal.Rptr. 88
• Court: California Court of Appeals Court of Appeals
• Parties: Aline E. ROWAN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Appellant. Civ. 23070.

Page 88

53 Cal.Rptr. 88

244 Cal.App.2d 308

Aline E. ROWAN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Appellant.

Civ. 23070.

District Court of Appeal, First District Division 2, California.

Aug. 18, 1966.

Rehearing Denied Sept. 16, 1966.

Hearing Denied Oct. 14, 1966.

Thomas M. O'Connor, City Atty., of City and County of San Francisco, R. J. Reynolds, Deputy City Atty., San Francisco, for appellant.

Marvin E. Lewis, San Francisco, for respondent.

TAYLOR, Justice.

The City and County of San Francisco (hereafter city) appeals from a judgment rendered on a jury verdict in favor of plaintiff for damages for personal injuries sustained as the result of a fall caused by a defective sidewalk. The city contends that the trial court erred in: (1) the denial of a nonsuit as plaintiff misled the city about the location of the accident; (2) the admission of evidence concerning budgetary requests for additional sidewalk inspectors; (3) the rulings on the examination of a city ambulance driver under section 2055 of the Code of Civil Procedure; and (4) the instructions to the jury.

As no contentions are raised concerning the sufficiency of the evidence, a brief summary of the facts will suffice. About 11:45 p.m. on January 27, 1961, plaintiff, then 54 years old, was returning home from her job as a practical nurse. For about two years she had lived at 2100 North Point Street, about two and one-half blocks beyond the place of her fall near the northeast corner of the intersection of Scott and Alhambra Streets. As was her custom, plaintiff got off the bus at Fillmore and Chestnut Streets and was walking north on Scott toward Alhambra. When she was a little more than half way up the block on the east side of Scott, her foot caught in a hole in the sidewalk. She fell and broke her hip. The sidewalk area was dark. Plaintiff walked home on the east side of Scott Street about half of the time but had never noticed any particular defects in the sidewalk. When she fell, she knew she was near the corner of Scott and Alhambra but did not know the exact location of her fall as she was in intense pain before being picked up by the city ambulance.

On March 2, 1961, plaintiff filed a timely claim against the city indicating the fall had taken place 'Approximately in front of 3350 Scott St.' The complaint in this action was filed in April 1961.

In April 1961 the City's sidewalk inspector made a detailed investigation of the sidewalk in front of 3348--3350 Scott, as well as the sidewalks in front of the building immediately to the north, 3354--3356, and the building immediately to the south, 3342--3344. This investigation revealed a new sidewalk in front of 3354--3356 which sloped downward to the north of the sidewalk in front of the building at the northeast corner of Scott and Alhambra, 3358--3360; the sidewalk in front of 3342--3344 and 3348--3350 contained various holes, depressions and cracks. The city took several pictures, one of which also showed that the sidewalk in front of the corner building at 3358--3360 Scott contained several sizeable holes ¹ near the junction of the south property line with the new sidewalk in front of 3354--3356. Near the north property line there was a crushed area 2" x 6" in diameter and a 'high joint'--one slope of concrete lower than the abutting adhesive concrete. A subsequent inspection by the city of the sidewalk in front of 3358--3360 showed that some of the holes were patched. In addition, the sidewalk in front of 3358--3360 Scott sloped 3 inches in 3 feet from north to south to one of the above mentioned holes. It was constructed with this slope by the City and County of San Francisco. Before a sidewalk can be constructed with such a slope, permission of the city's director of public works must be obtained. There was no record of any such permission for No. 3358--3360.

At the time of the accident, the city's department of public works employed from six to ten inspectors who inspected streets and sidewalks along with their other duties. The department's requests for an increase in its budget for additional sidewalk inspectors were repeatedly vetoed by the Mayor. No area inspection of the intersection here involved had been made since 1947. However, about nine years before the accident, the city had done some resurfacing work on Scott Street and the sidewalks were inspected at that time. The broken area in the sidewalk in front of 3358--3360 could have been caused by the city's rollers at the time of the resurfacing.

The city first argues that the court erred in denying its motion for nonsuit because plaintiff failed to comply with sections 53052 and 53053 of the Government Code which, so far as pertinent, then required that the claim specify the place of the accident. The claim against the city filed by plaintiff indicated that the fall had taken place 'Approximately in front of 3350 Scott St.' The complaint likewise placed the fall on the sidewalk at a point 60 to 70 feet south of Alhambra Street on the easterly side of Scott Street, which would be in the vicinity of 3348--3350 Scott. In October 1963 plaintiff filed an amendment to her complaint joining as a defendant one Capovilla, the owner of the property at 3348--3350, alleging that the defects causing her fall and injury existed in a special use driveway constructed across the sidewalk of the Capovilla premises. On January 9, 1964, the city filed a cross-complaint for declaratory relief against Capovilla. In June 1964 Capovilla filed a motion for summary judgment accompanied by an affidavit signed by the city ambulance driver, stating that he had picked up plaintiff immediately in front of the corner property at 3358--3360 Scott Street instead of 3348--3350 Scott Street. Plaintiff joined in the motion for summary judgment and subsequently the court rendered judgment in favor of Capovilla and against the city on the cross-complaint.

At the close of plaintiff's evidence, the city moved for a nonsuit on the ground that plaintiff had not correctly stated the place of the accident and had for a period of several years misled the city as to its correct location. The motion was denied. The city now argues that the court erred and it was fatally prejudiced in preparing its defense. We cannot agree.

The plain purpose of the notice statutes was to inform the public body of the accident upon which a claim for damages was based, to permit its agents to investigate the facts as to the time, place and condition of the premises and thus decide whether the case should be settled or litigated. The courts have been liberal in requiring nothing more than substantial compliance. In Johnson v. City of Oakland, 188 Cal.App.2d 181, 183, 10 Cal.Rptr. 409, where the fall was caused by a defective sidewalk in front of 1819 34th Avenue, but the verified claim incorrectly indicated 1819 35th Avenue, we held that the substantial compliance requirement had been met and reversed a summary judgment for defendant city. In Parodi v. City & County of San Francisco, 160 Cal.App.2d 577, 325 P.2d 224, this court found substantial compliance although the claim referred to the wrong intersection. The same result was reached in Johnson v. City of Los Angeles, 134 Cal.App.2d 600, 285 P.2d 713 where the plaintiff tripped on a hole in the sidewalk on the southwest corner of an intersection but the claim specified the southeast corner. On authority of these cases, the court properly denied the city's motion for a nonsuit. ²

The circumstances relating to the mistaken notice do not indicate bad faith by plaintiff nor undue prejudice to defendant. The records of the ambulance driver and the emergency hospital, both city agencies, noted the proper location of the accident. The investigation of the city inspector covered the sidewalk for several frontages in each direction from the location specified in the claim, as the inspector was experienced and knew that often claimants could not accurately pinpoint the location of a sidewalk accident. One of the pictures taken by the city during the original investigation showed a portion of the sidewalk in front of 3358--3360 Scott where the injury occurred. Although the city may have been somewhat prejudiced in concentrating its initial investigation and picture taking on the incorrect location, plaintiff was likewise prejudiced. In Johnson v. City of Los Angeles, supra, the court...