Callahan v. City and County of San Francisco

• Decision Date: 24 March 1967
• Citation: 57 Cal.Rptr. 639,249 Cal.App.2d 696
• Court: California Court of Appeals Court of Appeals
• Parties: Novelita CALLAHAN, by her Guardian ad Litem, Novella Goff, Plaintiff and Appellant, v. CITY & COUNTY OF SAN FRANCISCO, Defendant and Respondent. Civ. 23295.

Page 639

57 Cal.Rptr. 639

249 Cal.App.2d 696

Novelita CALLAHAN, by her Guardian ad Litem, Novella Goff, Plaintiff and Appellant, v. CITY & COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 23295.

Court of Appeal, First District, Division 4, California.

March 24, 1967.

Rehearing Denied April 21, 1967.

Hearing Denied May 17, 1967.

James W. Funsten, San Francisco, for appellant.

Thomas M. O'Connor, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for respondent.

DEVINE, Presiding Justice.

The appeal is from judgment for respondent based on an order sustaining demurrer to appellant's third amended complaint. The action is grounded upon the alleged violation of the California Tort Claims Act. The succeeding paragraph contains, in substance, the charging allegations against the City and County of San Francisco:

On July 11, 1964, plaintiff Novelita Callahan, a minor, was a passenger in an automobile which was traveling on Brotherhood Way towards Lake Merced Boulevard, highways owned and maintained by the city. The area was frequently covered with fog, and there was fog on this day. Brotherhood Way was designed with the appearance of a freeway, but it ended abruptly at Lake Merced Boulevard. Ahead, there were logs and trees and a declivity into the lake. The street and intersection were so negligently maintained that it was reasonably likely that a careful driver, in foggy conditions, might continue over the end of the road into the logs, trees or lake. No adequate warning signs or devices were provided by the city. ¹ As a proximate result of the negligence of the city so described, the driver of the car in which plaintiff was riding was unaware of the hazards, was caused to believe that he was on a high speed thoroughfare or freeway, and ran into the lake. It was reasonably foreseeable that as a consequence of the dangerous condition such an accident would occur.

There are also alleged the creation of the condition by the city, knowledge by the city of the condition, timely filing of a claim, and extremely serious injuries, including paralysis, to plaintiff.

The city demurred on the ground that the complaint states no cause of action.

Effect of Earlier Pleading

The assault upon the third amended complaint, however, was not directed particularly at this pleading alone. The city called upon the court to consider also plaintiff's earlier pleadings. The order sustaining the demurrer is 'upon the ground that, in the opinion of the Court, said complaint, considered in the light of the original verified complaint, does not state, and cannot be amended to state, facts sufficient to constitute a cause of action.'

In the original complaint, which was verified by appellant's guardian ad litem, respondent city was not made a party, but the driver of the vehicle in which appellant was riding, James A. Day, Jr., was made a defendant and was charged with wilful misconduct, as were other drivers of automobiles 'who were racing said automobiles with reckless disregard for the possible result.' Respondent contends that this allegation is fatal to appellant's action against the city.

The initial complaint against the City was appellant's first amended complaint. Day was not a defendant therein. There was no allegation about racing of vehicles or wilful misconduct, and this holds true of the third amended complaint, the one to which demurrer was sustained without leave to amend.

The city contends that appellant cannot escape the allegation made in the original complaint without the racing by the driver, Day, and about his wilful misconduct, simply by dropping these from later pleadings. It is the rule that allegations of fact, once made under oath, may not ordinarily be dropped without adequate explanation merely for the purpose of avoiding their harmful effect to the pleader. (2 Chadbourn, Grossman & Van Alstyne, California Pleading, § 1111, pp. 360--361; 2 Witkin, California Procedure, § 592, pp. 1603--1604.) The verified allegations may be considered by the court at a hearing of the demurrer to a later pleading. (Gressley v. Williams, 193 Cal.App.2d 636, 14 Cal.Rptr 496; Tostevin v. Douglas, 160 Cal.App.2d 321, 325 P.2d 130.)

But the rule must be taken together with its purpose, which is to prevent amended pleading which is only a sham, when it is apparent that no cause of action can be stated truthfully. (Avalon Painting Co. v. Alert Lumber Co., 234 Cal.App.2d 178, 184, 44 Cal.Rptr. 90.) We conclude that the allegations in the original complaint in the case before us do not constitute a bar to plaintiff's action against the city. The allegation of wilful misconduct was not against the city, of course, which was not even a party at the time, but was against Day. It was necessary, under the guest law, in order to state a cause of action against Day, that he be charged with wilful misconduct (or intoxication). (Veh.Code, § 17158.) The allegation of wilful misconduct under the guest law is but an allegation of a conclusion. (Bartlett v. Jackson, 13 Cal.App.2d 435, 56 P.2d 1298; Snider v. Whitson, 184 Cal.App.2d 211, 7 Cal.Rptr. 353; Van Meter v. Reed, 207 Cal.App.2d 866, 870, 24 Cal.Rptr. 688; 2 Chadbourn, Grossman & Van Alstyne, California Pleading, §§ 957, 958, pp. 40--41.) In order to constitute wilful misconduct, the driver must be guilty of intentional, wrongful conduct done either with or without wanton and reckless disregard of possible results. (Reuther v. Viall, 62 Cal.2d 470, 42 Cal.Rptr. 456, 398 P.2d 792.)

The allegation of reckless disregard for the possible result has to do with something mental or subjective on the part of the driver. (Goncalves v. Los Banos Mining Co., 58 Cal.2d 916, 918, 26 Cal.Rptr. 769, 376 P.2d 833; Gillespie v. Rawlings, 49 Cal.2d 359, 367, 317 P.2d 601; Woodson v. Everson, 61 Cal.App.2d 204, 142 P.2d 338.) Whether plaintiff would have been able to prove her allegations against Day, we shall never know. Wilful misconduct is essentially a question of fact. (Warren v. Sullivan, 188 Cal.App.2d 150, 10 Cal.Rptr. 340.) It would be unfair to give the city the benefit, at the pleading stage, of assuming that these generic allegations against another may be taken as proved. (See Avalon Painting Co. v. Alert Lumber Co., supra, 234 Cal.App.2d at p. 185, 44 Cal.Rptr. 90.) If the city were entitled to this benefit, plaintiff would have been put to an election which the law does not impose upon her. If by an allegation of wilful misconduct she stated a cause under the guest law, she would take the risk of ruling out her action against the city; if, on the other hand, she failed to make this allegation, she would have no cause against the driver.

But what of the allegation of the specific act on Day's part, of racing in the fog? Let it be noted at once that this conduct is not in itself chargeable to plaintiff, the occupant of the vehicle. Negligence of the driver is not to be imputed to the passenger. (Campagna v. Market Street Ry. Co., 24 Cal.2d 304, 309, 149 P.2d 281; Ross v. Wilcox, 190 Cal.App.2d 213, 11 Cal.Rptr. 588.) Nor is contributory negligence presently an issue (although it is stated by appellant, in anticipation, that she bagged the driver to stop.) ²

The allegation of racing comes close to being equivalent to an allegation of negligence, because speed contests are forbidden by law (Veh.Code § 23109), and violation of such a statute ordinarily constitutes negligence per se, in the absence of excuse or justification, which is unlikely in the case of racing. But the term 'wilful misconduct' does not have relevance to the case now that the driver, Day, is no longer a party. It has been held that even racing does not, per se, constitute wilful misconduct. (McLeod v. Dutton, 13 Cal.App.2d 545, 57 P.2d 189, approved in Parsons v. Fuller, 8 Cal.2d 463, 464, 66 P.2d 430.) 'Negligence,' rather than wilful misconduct, is the appropriate term in considering the present posture of the case, the guest law aspect of it having disappeared. The guest law (Veh.Code, § 17158) makes 'wilful misconduct' relevant only in actions against the driver or persons legally responsible for his conduct.

The question, therefore, is, assuming that Day was negligent because of his actions as charged by plaintiff in her original complaint, and assuming, as we must, that the allegations against the city are true: Does this exonerate the city as a matter of law from liability? Of course, the negligence of the third party may become a superseding cause, thereby striking out as a causative factor the public entity's negligence. But it is established that although a third person may have been concurrently negligent with a public entity, the latter is not necessarily relieved from liability. (Chavez v. County of Merced, 229 Cal.App.2d 387, 40 Cal.Rptr. 334; Irvin v. Padelford, 127 Cal.App.2d 135, 141, 273 P.2d 539; Hinton v. State of California, 124 Cal.App.2d 622, 269 P.2d 154; Bauman v. City and County of San Franciso, 42 Cal.App.2d 144, 154, 108 P.2d 989.) Foreseeability is the primary element. (Osborn v. City of Whittier, 103 Cal.App.2d 609, 615--616, 230 P.2d 132; Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 603, 265 P.2d 542; Parker v. City and County of San Francisco, 158 Cal.App.2d 597, 605--608, 323 P.2d 108.) The question of proximate cause essentially is one of fact. (Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 157 P.2d 372, 158 A.L.R. 872; Osborn v. City of Whittier, supra, 103 Cal.App.2d at p. 616, 230 P.2d 132; Barker v. City of Los Angeles, 57 Cal.App.2d 742, 748, 135 P.2d 573; Allen v. City of Los Angeles, 43 Cal.App.2d 65, 67, 110 P.2d 75; Bauman v. City and County of San Francisco, supra, 42 Cal.App.2d at p. 154, 108 P.2d 989.)

We conclude that if plaintiff has otherwise stated a cause of action against the city under the Tort Claims Act, a subject to which we shall proceed, the allegations of her earlier pleading are not destructive of her...