Collenburg v. Los Angeles County

• Citation: 150 Cal.App.2d 795,310 P.2d 989
• Court: California Court of Appeals
• Decision Date: 13 May 1957
• Parties: Avis D. COLLENBURG, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES and Kenneth E. Kirkpatrick, Defendants and Respondents. Civ. 22025.

Page 989

310 P.2d 989

150 Cal.App.2d 795

Avis D. COLLENBURG, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES and Kenneth E. Kirkpatrick, Defendants and Respondents.

Civ. 22025.

District Court of Appeal, Second District, Division 3, California.

May 13, 1957.

Hearing Denied July 10, 1957.

Samuel Maidman, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Deputy County Counsel, Los Angeles, for respondents.

VALLEE, Justice.

Appeal by plaintiff from a judgment of dismissal entered on the sustaining of defendants' general demurrer to the third amended complaint without leave to amend in an action to recover damages for wrongful death.

The third amended complaint, referred to as the complaint, is in two counts: the first, against defendant County of Los Angeles; the second, against defendant Kirkpatrick. The first count alleges: 1. Plaintiff is the mother of Franklin C. Fay, now deceased. Franklin at the time of his death was of the age of 15 years, 11 months, and 28 days. 2. The County of Los Angeles is a political subdivision of the state. 3. At all times mentioned the County of Los Angeles owned, operated, and maintained a juvenile forestry camp known as Camp Sycamore Canyon located in the county. 4. From March 17, 1955 Franklin had been under detention and held in custody by the county through its agents, including defendant Kirkpatrick. From July 15, 1955 Franklin was assigned to and held in custody in Camp Sycamore Canyon. 5. On September 2, 1955 th county, through its agents, was engaged in fighting a fire located in the vicinity of La Habra Heights in the Puente Hills in the county. The fire 'did cause and result in said deceased minor child being burned to death.' Franklin was compelled to fight said fire on the 'hot line,' the same being part of the system and plan and the dangerous condition complained of. 6. The county maintained a system and plan of operation with respect to Camp Sycamore Canyon which was and did create a dangerous condition in that Franklin was subjected to the system and plan, the same being dangerous to his well-being and safety. The system and plan consisted of placing him, without his consent or the consent of plaintiff, in a position of danger in fighting fires without adequate or sufficient training and experience to do so. Franklin, under said system and plan, was compelled to follow such directions and orders as might be imposed on him regardless of his lack of experience and training and without due regard to his safety, well-being, and tender years. 7. The system and plan was in operation and was known to the county to be in operation for a long time prior to the death of Franklin, and was known or should have been known to it to be a dangerous condition. For a reasonable time after acquiring said knowledge of said system and plan the county failed to remedy the dangerous condition or to take action reasonably necessary to protect Franklin against the same. By reason of the knowledge on the part of the county of the dangerous condition and because of its failure to remedy the same, it was guilty of a course of conduct that was negligent, careless, and unlawful in that Franklin should not have been assigned to any duty of such extreme danger as would imperil his life or safety without providing him with adequate, necessary, and proper safeguards for his protection against the hazard to which he was exposed by reason of the system and plan. 8. The county had knowledge of Franklin's age and had knowledge of his lack of experience and adequate training in fighting fires on a 'hot line' and of the hazardous condition and lack of protective means to safeguard him against the dangerous condition. The system and plan and dangerous condition was without consideration of such reasonable procedures, training, and direction as would have given adequate and proper protection to the safety and well-being of Franklin. 9. The county maintained a point or merit system as part of its system and plan; and compliance on the part of Franklin with the same was the only means available to him to obtain his release from the custody, care, and control of the county. 10. The failure of the county to change or modify the system or plan or to take action reasonably necessary to consider his safety, well-being, and protection was negligent, careless, and unlawful. 11. The negligence, carelessness, and unlawfulness of the county was a proximate cause of Franklin's death. 12. Plaintiff sustained damage. 13. A claim was filed with the county within the time allowed by law and was denied.

The second count alleges: 1. Defendant Kirkpatrick was the juvenile forestry director employed by the county and was in charge of the supervision of the activities of Franklin and Camp Sycamore Canyon and in charge of effectuating the system and plan alleged in the first count which caused Franklin's death on the 'hot line' while fighting the fire. 2. Kirkpatrick directly ordered Franklin to engage in fighting the fire and to be placed on the 'hot line' for that purpose. 3. As a result of said orders, Franklin was burned to death. 4. Franklin's death was the proximate result and caused by the maintenance of the dangerous condition and system which was then and for a long time prior thereto in operation at the camp. 5. Kirkpatrick had notice and knowledge of the dangerous condition. He had the authority and it was his duty to remedy such condition. He failed to take reasonable steps to do so or to give Franklin adequate warning of the danger to which he was exposed. It was the duty of Kirkpatrick to assign Franklin only to such duties as would not endanger his life. He knew or should have known that exposing Franklin to fighting a fire on a 'hot line' was a great danger to his life and safety. 6. The conduct of Kirkpatrick was negligent, careless, and unlawful and was a concurring cause of Franklin's death in that he was compelled to comply with Kirkpatrick's directions and to the system and plan. 7. A claim was duly presented to the county and to Kirkpatrick and rejected.

Liability is sought to be imposed on the county under the terms of section 53051 of the Government Code which reads:

'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 sufficiency of the first count depends on the answer to the question: Does it allege that Franklin's death resulted 'from the dangerous or defective condition of public property?' We think there can be no doubt but that if it is alleged that the fire took place on county property it could not be said that the first count does not state sufficient facts to constitute a cause of action against the county. Osborn v. City of Whittier, 103 Cal.App.2d 609, 230 P.2d 132; Pittam v. City of Riverside, 128 Cal.App. 57, 16 P.2d 768; Huff v. Compton City Grammar School Dist., 92 Cal.App. 44, 267 P. 918. There is no allegation in the complaint nor is any fact alleged from which it may be inferred that th fire was in the forestry camp or on property of the county. It would appear from the allegation that the fire was 'in and about the vicinity of La Habra Heights in the Puente Hills' that the fire was not in the forestry camp or on property of the county. The same would appear from what was said at the argument. Plaintiff's contention is that the system and plan in operation at the forestry camp was a dangerous condition to which Franklin was exposed.

Under the broad language of section 53051 the condition of the public property may be rendered dangerous within the meaning of the statute by 'the use or general plan of operation of government operated property, as well as by a structural defect.' Bauman v. City & County of San Francisco, 42 Cal.App.2d 144, 153, 108 P.2d 989, 995; Harper v. Vallejo Housing Authority, 104 Cal.App.2d 621, 624-625, 232 P.2d 262; Plaza v. City of San Mateo, 123 Cal.App.2d 103, 108, 266 P.2d 523. In each of those cases it was the use or general plan of operation of the property itself which created the dangerous condition. In Bauman a small child playing in a sand box in a public playground maintained by the defendant was injured by a ball batted by older children playing hard baseball in the immediate vicinity. The practice of older children playing baseball in the area and continued for some period of time. The court stated, 42 Cal.App.2d 153, 108 P.2d 994:

'The first and basic element is that the playground was in fact dangerous or defective. * * *

'The jury was justified in finding that the playground was dangerous and defective for any of the following reasons: That the playground was rendered dangerous or defective by the negligence of appellant in permitting the playing of hard baseball in dangerous proximity to the sand box; that under the circumstances here existing it was the duty of appellant, if hard baseball was to be permitted to be played in the north end of the field, to erect some barrier for the protection of those playing in the small children's section; or the appellant negligently failed to properly supervise the playground by either failing to prevent the boys from playing hard baseball in dangerous proximity to the small children's section or in negligently failing to keep the small children away from the sand box while hard baseball was being played nearby.'

In Harper the negligence alleged was permitting a recreational area owned and operated by the local agency to be so used by drivers and owners of motor vehicles as to render the area dangerous and defective for...