Akins v. Sonoma County

• Citation: 55 Cal.Rptr. 785
• Court: California Court of Appeals
• Decision Date: 21 December 1966
• Parties: Glen Ray AKINS, a Minor, by his Guardian ad Litem, Davis Akins, Plaintiffs and Appellants, v. COUNTY OF SONOMA and Bay Promotions, Inc., Defendants and Respondents. Civ. 23154.

Page 785

55 Cal.Rptr. 785

Glen Ray AKINS, a Minor, by his Guardian ad Litem, Davis Akins, Plaintiffs and Appellants, v. COUNTY OF SONOMA and Bay Promotions, Inc., Defendants and Respondents.

Civ. 23154.

Court of Appeal, First District, Division 1, California.

Dec. 21, 1966.

Rehearing Denied Jan. 12, 1967.

For Opinion on Hearing, see 60 Cal.Rptr. 499, 430 P.2d 57.

DeMeo, DeMeo, Foster & Waner, Santa Rosa, for appellants.

Lounibos & Lounibos, Petaluma, for County of Sonoma.

Sedgwick, Detert, Moran & Arnold, San Francisco, for Bay Promotions, Inc.

MOLINARI, Acting Presiding Justice.

In this action brought by plaintiff, Glen Ray Akins, a minor, by his guardian ad litem, Davis Akins, to recover damages for injuries allegedly sustained by plaintiff 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, plaintiff, by such guardian, appeals from the judgment, based upon a jury verdict, in favor of defendants, the County of Sonoma (the "County"), the owner of the fairground premises and the bleachers from which plaintiff fell, and Bay Promotions, Inc., the promoter of the roller derby exhibition at which plaintiff was in attendance at the time of his fault. ¹ The various issues raised by plaintiff will be treated separately under the respective headings following the statement of facts had the discussion delineating the scope of liability of the County and Bay Promotions.

The Facts

On the evening of May 17, 1962 Davis and Edna Akins, plaintiff's parents, took plaintiff, then two years and 11 months old, and their three older children, ages 8, 6 and 4 1/2 years, to a roller derby exhibition at the Sonoma County Fairgrounds in Santa Rosa. The exhibition was sponsored and promoted by Bay Promotions, who was the "licensee" of the fairground pavilion, which was owned by 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 this exhibition. Just before the first half of the roller derby exhibition ended the Akins moved from their seats about half way up in the bleachers to the top row of the bleacher seats. Following the half-time intermission the Akins remained in these seats, plaintiff sitting on the outside of the family group next to his 4 1/2 year old sister on one side and a stranger, Mr. Burt 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 a void space between the rear of his seat and the horizontal back rail slightly above and behind, landing on the concrete floor of the pavilion some 10 to 15 feet below.

Pictures of the bleacher section in which plaintiff was seated at the time of his fall were introduced into evidence. These pictures plus the testimony introduced concerning the structure of the bleachers reveal that the bleacher section consisted of approximately 13 tiered boards for seating, each seat board being approximately 9 inches wide; that the bleachers were not against a wall but were instead supported by a type of scaffolding; that the vertical bars of the scaffolding extended approximately four feet above the top seat board of the bleachers, where they were used to support three horizontal bars which provided a backing in the form of a railing for the top row seats; that the distance between the rear edge of the top row seat board and the vertical bars behind was 7 inches; and that the distance between the rear edge of the top row seat board and the lowest horizontal bar of the railing was 12 inches.

As to the manner in which plaintiff's accident actually occurred the record reveals that no one in plaintiff's family saw plaintiff fall, nor did plaintiff's father discover anyone who witnessed the fall; and that although prior to the fall plaintiff's father observed that plaintiff was sitting watching the game, at the time of the fall Mr. Akins' attention was directed to the activity of the skaters, who were in a jam session at the time. Mr. Reynolds, who was seated next to plaintiff at the time of the accident, testified that although he felt plaintiff's leg bump him at the time of the fall he did not see plaintiff fall nor could he state whether plaintiff was sitting or standing at the time of the fall. Reynolds did testify, however, that he never observed plaintiff stand on the top row seat; that prior to 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. Finally, 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 record reveals that the bleachers at the fairgrounds were owned by the County; that these bleachers had been owned by the County since 1948 and had been furnished by the County to various organizations, including Bay Promotions, which had rented the pavilion for various types of exhibitions; and that it was the County's responsibility to assemble the bleachers, which were of the portable type, and to maintain and repair them. James Lyttle, who was the general manager of the fair and who in this capacity was charged with the responsibility of maintaining and repairing the pavilion and the bleachers, testified that he had inspected the bleachers prior to plaintiff's fall; that he was aware that there was a space between the top row seat and the first railing behind the seat; that he knew that this space was large enough for a child to fall through; that he had seen children present and sitting on the bleachers at various events at the fairgrounds prior to May 17, 1962; that he expected children to be in attendance at the roller derby exhibition; and 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 whenever they wished.

Henry 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. On cross-examination, however, Degenkolb testified that a child 38-inches tall and weighing 37 pounds (this being plaintiff's height and weight at the time of the fall) could fall through the void space in question while he was sitting on the top row of the bleachers.

The record further reveals that the roller derby exhibition as sponsored by Bay Promotions had been advertised through various media including literature through the mail, television, and newspaper; that it was advertised as a safe spectator sport for the whole family and for children and adults of all ages from two months to 70 years; that newspaper advertising purchased by Bay Promotions 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 accident he saw other young children at the roller derby exhibition and noticed that some of these children were sitting and others were playing on the top row seats of the bleachers. Mr. Reynolds, too, testified that he saw children of all ages and sizes present at the roller derby on the night of the accident and further testified that he had seen children of all ages and sizes on the top row seat on the same bleachers on prior occasions.

Evidence was introduced to the effect that neither the County nor Bay Promotions had posted signs on the fairground premises warning spectators concerning the void space which existed behind the top row seat of the bleachers; that no written or verbal instructions were ever given to any employee of the County with respect to warning the public about the void space in question; and that the County gave no written or oral instructions to Bay Promotions, or to any of its employees with reference to the void space itself or warning the public of the space.

In addition, Gerald Seltzer, the president of Bay Promotions, testified that this organization had been exhibiting roller derby to the public at the fairgrounds since 1961 and had used the County's portable bleachers on these occasions; and that although he personally had been to the fairground premises prior to May 17, 1962 he had at no time noticed that a void space existed between the top row seat and the horizontal railing behind this seat. Finally the record reveals that although Bay Promotions had ushers on duty on the night of the accident, the ushers were hired not to seat people but rather to ascertain whether ticket holders were in the proper section.

Bases of the County's and Bay Promotions' Liability ²

Since the issues in this case may have different application insofar as they concern defendant County and defendant Bay Promotions, we proceed first to discuss the possible bases of liability as against each defendant. Initially we note that the complaint is founded in negligence and pleads two counts, each of which refers to both defendants. The first count is predicated upon the theory that defendants negligently maintained, permitted and allowed a dangerous and defective condition, namely, dangerous and unsafe bleachers, of...