Akins v. Sonoma County

• Court: California Supreme Court
• Writing for the Court: BURKE; TRAYNOR; PETERS; TOBRINER
• Citation: Akins v. Sonoma County, 60 Cal.Rptr. 499, 67 Cal.2d 185, 430 P.2d 57 (Cal. 1967)
• Decision Date: 28 July 1967
• Docket Number: S.F. 22505
• Parties: , 430 P.2d 57 Glen Ray AKINS, a Minor, etc., Plaintiff and Appellant, v. COUNTY OF SONOMA et al., Defendants and Respondents

Page 499

60 Cal.Rptr. 499

67 Cal.2d 185, 430 P.2d 57

Glen Ray AKINS, a Minor, etc., Plaintiff and Appellant, v. COUNTY OF SONOMA et al., Defendants and Respondents.

S.F. 22505.

Supreme Court of California

July 28, 1967.

Rehearing Denied Sept. 21, 1967.

DeMeo, DeMeo, Foster & Waner and John F. DeMeo, Santa Rosa, for plaintiff and appellant.

Ball Hunt, Hart & Brown, Joseph A. Ball and Elmer G. Hitt, Long Beach, as amici curiae on behalf of plaintiff and appellant.

Lounibos & Lounibos, Leroy J. Lounibos, Petaluma, Sedgwick, Detert, Moran & Arnold and James L. Gault, San Francisco, for defendants and respondents.

BURKE, Justice.

In this personal injury action plaintiff, a minor appearing by his guardian ad litem, appeals from an adverse judgment entered on a jury verdict in favor of defendants, the County of Sonoma and Bay Promotions, Inc. (hereinafter 'Bay'). Plaintiff's injuries were allegedly suffered when he fell from his seat on the top row of bleachers onto a concrete floor at the Sonoma County Fairgrounds in Santa Rosa while attending a roller derby exhibition. The county owned the fairground premises and the bleachers, and Bay was the promoter of the roller derby exhibition. As will appear, we have concluded that the case was fully and fairly tried, that no error prejudicial to plaintiff occurred, and that the judgment should be affirmed.

On an evening in May 1962 plaintiff's parents took plaintiff, then 2 years and 11 months old, and their three older children, aged 8, 6 and 4 1/2 years, to the roller derby exhibition at the county fairgrounds. Defendant Bay, which sponsored and promoted the exhibition, rented the fairground pavilion from the county. The Akins arrived at the fairgrounds at approximately 6:45 p.m., purchased tickets for admission to the exhibition, and seated themselves on the east side of the pavilion in one of the three sections of portable bleachers which had been provided by the county to accommodate spectators at the exhibition. Just before the half-time intermission of the roller derby exhibition the Akins moved from their seats about half way up in the bleachers to the top row of the bleacher seats. Following the intermission the Akins remained in these seats, with plaintiff sitting at the end of the family group next to his 4 1/2-year-old sister on one side and a stranger, Mr. Reynolds, on the other. At approximately 9:45 p.m., some 10 to 20 minutes after the second half had begun, plaintiff fell from his seat in the bleachers through an open space between the rear of his seat and a horizontal back rail above and behind, landing on the concrete floor of the pavilion some 10 to 15 feet below. Plaintiff was then 38 to 39 inches in height and weighed some 37 pounds.

From the record it appears that the bleacher section consisted of approximately 13 tiered boards for seating. Each seat board was approximately 9 inches wide. The bleachers were not against a wall but were instead supported by a type of scaffolding. The vertical bars of the scaffolding extended approximately 4 feet above the top seat board of the bleachers, where they were used to support three tubular horizontal bars which provided a backing in the form of a railing for the top row seats. The distance between the rear edge of the top row seat board and the vertical bars was 7 inches (i.e., the vertical bars were 7 inches behind the rear edge of the seat board); and the diagonal distance between the rear edge of the top row seat board and the lowest horizontal bar of the railing was 12 inches.

No one in plaintiff's family saw him fall nor did plaintiff's father discover anyone who witnessed the fall. Although prior to the fall plaintiff's father observed that plaintiff was sitting watching the game, the father's attention at the time of the fall was directed to the activity of the skaters, who were then in a jam session. Mr. Reynolds, who was seated next to plaintiff, testified that he felt plaintiff's leg bump him at the time of the fall but did not see plaintiff fall and could not state whether plaintiff was then sitting or standing; that he had never observed plaintiff stand on the top row seat; that before the accident he had on several occasions seen plaintiff reseat himself after standing to watch a jam, and that in reseating himself plaintiff slid back as he sat on the seat, 'kind of wiggling back and get back where he wanted to sit to be comfortable.' In addition, Reynolds admitted that he told the policeman who made a report of plaintiff's accident that plaintiff was wiggling around and suddenly fell through the bleachers. Plaintiff's father testified that when he questioned plaintiff some time after the accident as to how the fall had occurred, plaintiff replied, 'I fell off watching roller derby * * * I was sitting there and I fall off.'

The county had owned the bleachers at the fairgrounds since 1948 and had furnished them to various organizations, including defendant Bay, which had rented the pavilion for various types of exhibitions. It was the county's responsibility to assemble and disassemble the bleachers, which were of the portable type, and to maintain and repair them. James Lyttle, who was employed by the county as general manager of the fair and who in that capacity was charged with the responsibility of overseeing the maintenance and repair of the pavilion and the bleachers and of renting them out for the county for various events, testified that he had personally inspected the bleachers from time to time before plaintiff's fall and was aware that there was a space large enough for a child to fall through between the top row seat and the first railing behind that seat; that he had seen children present and sitting on the bleachers at various events at the fairgrounds before plaintiff's accident; that he expected children to be in attendance at the roller derby exhibition; that although he did not expect children of the age of two or three to be seated on the top row of the bleachers unless they were under full control of their parents, he did expect children to be seated wherever they wished.

Mr. Degenkolb, a structural engineer who had personally designed bleachers, testified that the bleachers at the fairgrounds were normal, standard bleachers and were in conformity with general engineering standards of safety, but that a child of plaintiff's size (38 inches tall and weighing 37 pounds) could fall through the open space in question while he was sitting on the top row of the bleachers.

It further appears from the record that the roller derby exhibition as sponsored by Bay had been advertised through various media including the mails, television, and newspapers; that it was advertised as a good, clean sport for the whole family and for children and adults of all ages from 2 months to 70 years; that newspaper advertising purchased by Bay advertised the price of admission for children; and that television advertising encouraged the bringing of children to the roller derby exhibition. Plaintiff's father testified that on the night of plaintiff's fall he saw other young children at the roller derby exhibition and noticed that some of them were sitting and others were playing on the top row seats of the bleachers. Mr. Reynolds also testified that he saw children of all ages and sizes present at the roller derby on the night of the accident, and that he had seen children of all ages and sizes on the top row seat on the same bleachers on prior occasions.

Neither the county nor Bay had posted signs on the fairground premises warning spectators concerning the open space which existed behind the top row seat of the bleachers; no instructions were ever given to any county employee with respect to warning the public about such open space; and the county gave no instructions to Bay or to any of its employees with respect to the open space or warning the public of the space.

In addition, Mr. Seltzer, the president of Bay, testified that Bay had been exhibiting roller derby to the public at the fairgrounds since 1961 and had used the county's portable bleachers on such occasions; that although he had been to the fairground premises before the date of plaintiff's fall he had at no time noticed that an open space existed between the top row seat and the horizontal railing behind the seat; that Bay had ushers on duty on the night of the accident, but they were hired not to seat people but to ascertain whether ticket holders were in the proper section.

Plaintiff contends that various asserted errors occurred at the trial, particularly in instructing the jury, which require reversal of the judgment.

Preliminarily it should be noted that the 1963 Tort Claims Act applies. (See Cabell v. State of California, Cal., 60 Cal.Rptr. 476, 430 P.2d 34).

Safety Orders, Administrative Regulations and Local Building Codes

Plaintiff requested the trial court to instruct the jury in terms of various General Industrial Safety Orders contained in title 8 of the California Administrative Code, various Regulations of the State Fire Marshal contained in title 19 of the Administrative Code, and various sections of the building codes adopted by the Court and by the City of Santa Rosa. ¹ Plaintiff also offered an instruction to the effect that if either defendant violated any of such safety orders, regulations, or building code provisions a presumption of negligence arose as to that defendant which could be overcome by evidence showing that, under all the circumstances surrounding the event, such defendant's conduct was excusable or justifiable. The court refused to give any of these requested instructions and informed the jury at the conclusion of the trial that as a matter of law no safety regulations were applicable to the case. ²

General Industrial Safety Orders. The benefit of such safety orders, where applicable, has been extended by judicial decision in this state to the general public in places of...