Branzel v. City of Concord

• Decision Date: 08 December 1966
• Citation: 55 Cal.Rptr. 167,247 Cal.App.2d 68
• Court: California Court of Appeals Court of Appeals
• Parties: Major Michael BRANZEL and Cynthia Pamela Branzel, Minors, by and through their mother and Guardian ad Litem Eleanor Branzel, and Eleanor Branzel, individually, Plaintiffs and Respondents, v. CITY OF CONCORD, a Municipal Corporation, Defendant and Appellant. Civ. 22969.

Page 167

55 Cal.Rptr. 167

247 Cal.App.2d 68

Major Michael BRANZEL and Cynthia Pamela Branzel, Minors, by and through their mother and Guardian ad Litem Eleanor Branzel, and Eleanor Branzel, individually, Plaintiffs and Respondents, v. CITY OF CONCORD, a Municipal Corporation, Defendant and Appellant.

Civ. 22969.

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

Dec. 8, 1966.

Schofield & Cunningham, E. R. Cunningham, Oakland, Richard G. Logan, Oakland, of counsel, for appellant.

James A. Myers, Russell W. Federspiel, Oakland, for respondents.

SULLIVAN, Presiding Justice.

In this wrongful death action, defendant City of Concord (City) appeals from a judgment entered upon a jury verdict in favor of plaintiffs and against City in the sum of $41,000. The same jury returned a verdict in favor of defendant Pacific Gas and Electric Company (PG&E) and against plaintiffs. Plaintiffs have not appealed from the adverse judgment entered on this verdict.

Plaintiffs are the wife and children of decedent Clarence Matthew Branzel. On the afternoon of March 13, 1961 the Branzels--Clarence, Eleanor, his wife, and Major ¹ his son, then 16 years old, went to an area maintained by the City for the flying of model airplanes. The purpose of the occasion was to fly a plane recently built by Major, who belonged to a model airplane club called the Concord Model Engineers and had been flying such planes for about two years. Major's plane was of the general type equipped with a motor and flown in a circle by holding and maneuvering a long wire line attached to the plane. The line was about 70 feet long and the plane was capable of 3 to 5 minutes sustained flight at a speed of approximately 60 to 70 miles per hour.

It was stipulated at the trial that the field was located on property owned by the City and for about a year before the accident here involved had been authorized for use by the Model Engineers Club as a flying field. The field was on the north side of Bissel Lane, a City street approximately 21 feet wide. Immediately adjacent to the south side of Bissel Lane, the power lines of defendant PG&E ran in a general easterly and westerly direction. The model planes were controlled from an area in the center of the field which was about 170 feet from the power lines. The field itself was not enclosed and was largely covered with weeds and grass except for a dirt strip 10 feet wide on the perimeter which was used as a take-off and landing area for the planes. Thus this strip was about 70 feet from the center and about 100 feet from the PG&E power lines. A large sign in the southeast corner of the field and close to Bissel Lane identified it as a Model Airplane Field. ²

The PG&E power lines consisted of three parallel wires suspended 34--35 feet above the ground, on cross-arms attached to poles. The power poles were some 248 feet apart. Each of the three wires carried 2300--2400 volts which would pass from any one wire to the ground if contact were made with it. The wires were uninsulated but Irid W. Collins, a consulting electrical engineer and former employee of PG&E, testified that there was no proven reliable insulation in the electrical industry for such wires and that the particular lines were in full conformity with applicable orders of the Public Utilities Commission.

Arriving at the field with his parents, Major, assisted by his father, prepared the model plane for flight by unreeling the control line and getting the engine started. The boy then went to the center of the circle, grabbed the plastic handle at the end of the 70 foot line, and signaled to his father to release the plane. The plane became air-borne and Major started flying it in a circle, counterclockwise and about 30 or 40 feet from the ground. At this time Major's father was standing on the south side of the flying field and his mother on the west side. After the plane had thus made about a dozen revolutions around the field, the plastic handle at the end of the line slipped from Major's hand ³ and the plane took off uncontrolled in a southerly direction towards Bissel Lane, and the power lines. All three Branzels immediately gave chase, with Mr. Branzel in the lead. It was flying at a speed of about 60 miles per hour and at a height of about 35 feet, with the guideline trailing and the plastic handle at the end at about ground level. At about the north side of Bissel Lane, Mr. Branzel still on the run caught hold of the handle momentarily whereupon the plane appeared 'to jerk around,' and to climb up and over the wires. The guide wire of the plane went over the high voltage wires and the plane dove and crashed near Major's father. In the process of grabbing to regain the handle or wire, Mr. Branzel caught hold of the plane's guide wire at about the time it came in contact with the power lines and was immediately electrocuted.

The testimony of Major and his mother, together with the evidence as to the speed of the plane and distance travelled, indicates that the accident took place in a period of a few seconds. Decedent was found lying on the ground near the fence enclosing the school district bus depot which was located on the south side of the road and opposite the flying field. When Major and his mother reached the spot, they saw that decedent still had hold of the guide wire and that there were 'flickers of fire' and 'sparking' coming from his hand.

As the trial court so instructed the jury, ⁴ plaintiffs' cause of action was based on the Public Liability Act of 1923 (Stats. 1923, ch. 328, p. 675) as set forth in former Government Code section 53051. ⁵ Said last-mentioned section as in effect at the time of the accident involved in the instant case provided as follows: 'A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition: (a) Had knowledge or notice of the defective or dangerous condition. (b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.'

The sole contention made by the City on this appeal is that as a matter of law there was no dangerous or defective condition of any of its property proximately causing decedent's death.

Public property is in a dangerous or defective condition within the meaning of former section 53051 when it involves an unreasonable risk of injury to the public. (Hawk v. City of Newport Beach (1956) 46 Cal.2d 213, 217, 293 P.2d 48; Teall v. City of Cudahy (1963) 60 Cal.2d 431, 433--434, 34 Cal.Rptr. 869, 386 P.2d 493; Jones v. City of Los Angeles (1951) 104 Cal.App.2d 212, 215, 231 P.2d 167; Gallipo v. City of Long Beach (1956) 146 Cal.App.2d 520, 527, 304 P.2d 106; Torkelson v. City of Redlands (1961) 198 Cal.App.2d 354, 358, 17 Cal.Rptr. 899; Holder v. City of Santa Ana (1962) 205 Cal.App.2d 194, 197, 22 Cal.Rptr. 707; Campbell v. City of Palm Springs (1963) 218 Cal.App.2d 12, 21, 32 Cal.Rptr. 164.) To put it another way, the condition of the property is dangerous or defective 'if the hazard is one from which injury may reasonably be anticipated to those properly using the area for the purpose intended.' (Gentekos v. City & County of San Francisco (1958) 163 Cal.App.2d 691, 696, 329 P.2d 943, 948; Jones v. City of Los Angeles, supra.) As stated in Jones: 'Since the city is not an insurer of the safety of its property (citation), the degree of hazard created by a given condition of property is determinative as to whether it is a dangerous or defective condition within the purview of the Statute.' (104 Cal.App.2d at p. 215, 231 P.2d at p. 169; Holder v. City of Santa Ana, supra.)

In determining whether public property is in a dangerous or defective condition, one of the pertinent factors to be considered is the use to which the property is put. (Torkelson v. City of Redlands, supra, 198 Cal.App.2d 354, 358, 17 Cal.Rptr. 899.) As we said in Bauman v. City and County of San Francisco (1940) 42 Cal.App.2d 144, 153, 108 P.2d 989, 995, 'a dangerous or defective condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect. (Citation.)' (See Holder v. City of Santa Ana, supra, 205 Cal.App.2d 194, 198, 22 Cal.Rptr. 707 and cases there collected.) It has been said therefore that 'the use factor to be considered in making such determination includes not only its designed or originally intended use, but every other reasonably anticipated use * * *.' (Torkelson v. City of Redlands, supra, 198 Cal.App.2d at p. 361, 17 Cal.Rptr. at p. 903.) In sum, whether the risk is unreasonable depends in a sense on whether the injury may be reasonably anticipated from an ordinary use of the property. (Holder v. City of Santa Ana, supra.) ⁶

Whether a given set of facts or circumstances creates a dangerous or defective condition is as a general rule a question of fact for the determination of the trier of fact (Aguirre v. City of Los Angeles (1956) 46 Cal.2d 841, 844, 299 P.2d 862; Bauman v. City and County of San Francisco, supra, 42 Cal.App.2d 144, 153, 108 P.2d 989; Ziegler v. Santa Cruz City High School Dist. (1959) 168 Cal.App.2d 277, 281, 335 P.2d 709; Torkelson v. City of Redlands, supra, 198 Cal.App.2d 354, 358, 17 Cal.Rptr. 899; Holder v. City of Santa Ana, supra, 205 Cal.App.2d 194, 197, 22 Cal.Rptr. 707) but the question may be determined as a matter of law 'if reasonable men following the law can draw but one conclusion from the evidence presented.' (Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183, 258 P.2d 834, 836; Beck v. Kessler (1965) 235 Cal.App.2d 331, 335--336, 45 Cal.Rptr. 237 and cases there cited; Holder v. City of Santa Ana, supra, 205 Cal.App.2d at pp. 197--198, 22 Cal.Rptr. 707.)

Applying the foregoing principles to the facts of the instant case We...