Acosta v. Los Angeles County

• Decision Date: 03 July 1961
• Citation: 363 P.2d 473,14 Cal.Rptr. 433,56 Cal.2d 208
• Court: California Supreme Court
• Parties: , 363 P.2d 473, 88 A.L.R.2d 1417 Thomas ACOSTA, a Minor, etc., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent. L. A. 26238.

Page 433

14 Cal.Rptr. 433

56 Cal.2d 208, 363 P.2d 473, 88 A.L.R.2d 1417

Thomas ACOSTA, a Minor, etc., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

L. A. 26238.

Supreme Court of California, In Bank.

July 3, 1961.

Freedman, Herscher, Gold & Fox and Daniel M. Herscher, Beverly Hills, for plaintiffs and appellants.

Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Deputy County Counsel, Los Angeles, for defendant and respondent.

WHITE, Justice.

Thomas Acosta, a minor, by his father, Richard Acosta, guardian ad litem, and Richard Acosta appeal from a judgment of dismissal following the granting of defendant's motion for summary judgment in an action against the County of Los Angeles for personal injuries sustained by the minor, and for reimbursement for medical expenses incurred by Richard Acosta individually, as a result of injuries sustained by the minor plaintiff.

It is alleged in behalf of the minor that he was injured in a fall from his bicycle caused by a bump in a sidewalk negligently maintained by the County of Los Angeles. Recovery is sought under the Public Liability Act. Government Code, § 53050 et seq. The motion for summary judgment as to both causes of action was supported by an affidavit in which it was set out that an ordinance of the County of Los Angeles prohibited, among other things, the operation of a bicycle on county sidewalks except in specified areas not here involved. In opposition thereto the minor filed an affidavit stating that he was nine years of age at the time of his injury, and that he did not know it was unlawful to ride a bicycle on a county sidewalk.

It must be conceded that a county may reasonably restrict the use of county highways for the protection of the public (Streets & Highways Code, § 942.5), and that an ordinance prohibiting bicycle riding on sidewalks is such reasonable exercise of the power. But whether by the enactment of such an ordinance the county absolves itself of its liability resulting from negligent maintenance of the sidewalk for injuries occurring to a minor engaged in the prohibited conduct, yet remains to be resolved.

The question is immediately raised as to the nature of the duty owed the minor by the county as relates to the maintenance of its sidewalks. It is claimed that because he was guilty of violating the ordinance prohibiting the riding of bicycles on the sidewalk, the minor was a trespasser and that the duty owed him is no greater than that of a proprietor of private property to refrain from wilful or wanton injury and from active negligence as against a trespasser. It is manifest, however, that there are substantial differences in the instant case as compared to a trespasser on private property. In the first place, the minor was not in or on a place where he was not entitled to be or remain. The ordinance prohibits only the riding of his bicycle, not his entry onto the sidewalk. Furthermore, in spite of the ordinance, the very nature of a sidewalk is one which invites entry of the nature here involved, and particularly the entry of children, in the lack of affirmative enforcement action on the part of the county. Finally, the purpose of the ordinance does not appear to be one intended to protect the county from claims resulting from injuries to bicycle riders caused by negligently maintained sidewalks, as injuries equal in number and serverity would as likely occur if bicycle riders were forced to travel negligently maintained streets. Rather the ordinance appears to be one designed to protect pedestrians from bicycle riders and others prohibited from use of the sidewalks. In view of such consideration, in a case factually similar to the instant one, the Supreme Court of Tennessee, in City of Winchester v. Finchum, 1956, 201 Tenn. 604, said, beginning at page 611, 301 S.W.2d 341, at page 344 and quoting from the Tennessee Court of Appeals: "That ordinance outlawed the riding of bicycles and other vehicles on the sidewalks, but it did not make such riders themselves outlaws, or put them beyond the protection of the law, or divest the City of the duty it owed them in common with all other members of the public to use due care to keep such walks reasonably safe for use by pedestrians. * * *

"The authorities generally hold, where a city permits the riding of bicycles on its sidewalks, that though it is not bound to keep such walks safe for such riding, it does owe to the riders the same duty it owes pedestrians to safeguard such walks against dangerous defects; and that a bicyclist may recover for injuries caused him by such a defect, provided he was not guilty of proximate contributory negligence. Guidi v. Town of Great Barrington, 272 Mass. 577, 127 N.E. 916; Le May v. Oconto, 229 Wis. 65, 281 N.W. 688, 118 A.L.R. 1019; Arata v. Orleans Capitol Stores, Inc., 219 La. 1045, 55 So.2d 239; Collins v. Philadelphia, 227 Pa. 121, 75 A. 1028, 27 L.R.A.,N.S., 909, 136 Am.St.Rep. 873-874, 19 Ann.Cas. 972, 973; Annotation, 118 A.L.R. 1023; 19 McQuillin, Municipal Corporations (3rd ed.) sec. 54.54; 7 Am.Jur. Bicycles, sec. 17, page 740.

"Where a child has been injured by a defect in the sidewalk while riding a bicycle thereon in violation of a city ordinance, some cases have denied recovery on the ground that the city owed such child no duty to keep such walks reasonably safe for riding a bicycle thereon, and the view has been expressed that such a child was a trespasser to whom the city owed no duty. See cases cited in annotation 118 A.L.R. 1024-1025.

"For the reasons above stated, however, we think that the ordinance forbidding the riding of bicycles in Winchester did not abolish the City's duty to the children whom it permitted to ride on its sidewalks; that it cannot say they were trespassers; that it owed them the same measure of duty which it owed pedestrians, and that they were entitled to protection against such defects as would be actionable in case of injury to a pedestrian." Cf. Hill v. Reaves, 1932, 224 Ala. 205, 139 So. 263.

It is claimed here, as in the Tennessee case, that in spite of the ordinance the county permitted, or condoned, the riding of bicycles by children on the sidewalks, and that such factual question ought not have been resolved on motion for summary judgment. The question was raised in the trial court inferentially by the minor's declaration in opposition to the motion to the effect that he had no knowledge of the prohibited conduct.

Plaintiffs also seek to avoid the effect of the status of a trespasser on...