Avey v. Santa Clara County
| Decision Date | 10 January 1968 |
| Citation | 257 Cal.App.2d 708,65 Cal.Rptr. 181 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Charles W. AVEY and Mrs. Charles W. Avey, Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA and City of Sunnyvale, Defendants and Respondents. Civ. 23769. |
B. V. Yturbide, Grant A. Winther, San Francisco, for appellants.
Toff, Gordon & Royce, Mountain View, for respondents.
The appeal in this case is taken from a summary judgment in favor of defendants County of Santa Clara and City of Sunnyvale. The action was brought by plaintiffs to recover damages for the alleged wrongful death of their minor son.
In the proceedings for summary judgment, plaintiffs made the following showing. In the City of Sunnyvale in Santa Clara County, public highways known as El Camino Real and Fremont Avenue were separate by a narrow island of land upon which tall shrubbery and foliage was maintained and growing. Across from the island on El Camino Real was a school bus stop where children waited for buses taking them to school. Directly across from the bus stop, on the other side of the island and Fremont Avenue, was a grocery store. Children waiting at the bus stop would sometimes run across El Camino Real, the island and Fremont Avenue, to buy candy and refreshments and then run back again. Defendants knew of this practice, and knew, or should have known, that the view of motorists using the two highways was obstructed by the island's foliage so that they would not see children running through it to or from the store in time to avoid colliding with them as they then ran onto the highway. Plaintiffs' 7-year-old son, while waiting for a school bus, ran to the store. Returning, he crossed the island, and while crossing El Camino Real was fatally struck by an automobile. Defendants had prior notice that another young child had been killed in approximately the same way. Defendants had a reasonable time to eliminate the dangerous condition by erecting a fence or providing traffic control or supervision at times when children were waiting for school buses, but nothing was done to eliminate the danger.
Additionally, the declaration of plaintiffs' attorney recited: '(T)his declarant believes there may be evidence (not yet fully verified) that the City, conscious of the danger involved, would on sporadic occasions before and after school provide a policeman to supervise the bus stop in question and would sometimes notify mothers of the children when such an officer would not be available, so the mothers could arrange to supervise the area themselves, but that, on the date of the accident, the City neither provided such an officer nor gave such notice.'
On their motion for summary judgment defendants established by affidavits and declarations of officials of the State of California, County of Santa Clara and City of Sunnyvale, that the island and El Camino Real were owned, controlled and maintained by the State of California, that neither the City of Sunnyvale nor the County of Santa Clara had maintained the island or El Camino Real, or planted any shrubbery thereon, and that neither the City of Sunnyvale nor the County of Santa Clara had dominion or control over the said island or El Camino Real.
It appears that the City of Sunnyvale and County of Santa Clara did own, control and maintain Fremont Avenue.
Motions for summary judgment are provided for in section 437c of the Code of Civil Procedure. The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. The better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts. A summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain judgment in his favor, and his opponent does not by affidavit or affidavits show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. In other words, the affidavits are to be construed with all intendments in favor of the party opposing the motion--here the plaintiff. (Desny v. Wilder, 46 Cal.2d 715, 725--726, 299 P.2d 257, and see cases there cited.)
The action here was brought under Government Code, sections 830--840.6, enacted in 1963, which are substantially a codification of California's Public Liability Act of 1923, formerly Government Code, section 53050 et seq. (See Flournoy v. State of California, 230 Cal.App.2d 520, 527--528, 41 Cal.Rptr. 190.) As applicable here, the new statute appears to restate the old; no contention is made to the contrary.
Government Code, section 835 provides: 'Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.'
Defendants contend that, having no ownership or control or right of control over El Camino Real or the island in...
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...property and willfully accessing a hazard on adjacent property.11 Two cases are illustrative. First, in Avey v. Santa Clara County (1968) 257 Cal.App.2d 708, 65 Cal.Rptr. 181, the city owned Fremont Avenue, on which a grocery store was located. ( Id. at p. 710, 65 Cal.Rptr. 181.) Children w......
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