Curreri v. City and County of San Francisco

• Decision Date: 29 May 1968
• Citation: 262 Cal.App.2d 603,69 Cal.Rptr. 20
• Parties: Diana CURRERI, a minor by and through Lillian Curreri, mother and General Guardian, and Lillian Curreri, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. Civ. 23904.
• Court: California Court of Appeals Court of Appeals

Page 20

69 Cal.Rptr. 20

262 Cal.App.2d 603

Diana CURRERI, a minor by and through Lillian Curreri, mother and General Guardian, and Lillian Curreri, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 23904.

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

May 29, 1968.

Hearing Denied July 24, 1968.

Hoberg, Finger, Brown & Abramson, by Michael J. Kennedy, San Francisco, for appellants.

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

HAROLD C. BROWN, Associate Justice.

Plaintiffs appeal from a judgment of dismissal following the granting of a summary judgment in favor of the City and County of San Francisco (hereinafter referred to as City) in an action for personal injuries suffered by the plaintiff, Diana Curreri. This appeal does not apply to Dominico Basili, the other named defendant who was not a party to the motion for summary judgment and against whom an action is pending.

The parties are in essential agreement as to the facts elicited by discovery proceedings.

On Sunday, October 13, 1963, Dominico Basili, age 78, parked his Ford sedan at a right angle to the north curb of Greenwich Street in front of the building (three flats) numbered 1022--24--26 Greenwich Street. It was the permissive custom to park automobiles at a right angle to the curb with both front wheels resting against the curb on the north side of the street and to park parallel to the curb on the south side of the street. When Basili returned to drive away there were other cars parked at right angle to the curb and very close to each side of his car.

The 1000 block of Greenwich Street is a two-way street running east and west and lies on a very steep hill sloping in an easterly direction. Because of the steepness of the hill and the close proximity of the other autos, it was difficult for Basili to see traffic coming down the hill. With a friend guiding him, Basili backed about half way from the curb but could not clear the other cars. He changed gears from reverse to drive, drove forward slowly to make another attempt to gain clearance until he was about one foot from the curb, and then moved his right foot from the accelerator toward the brake in order to stop the car. When he tried to stop, however, his foot shifted downhill from the brake to the accelerator. Basili's car jumped forward across the curb and over the sidewalk, struck Diana Curreri (plaintiff), a minor, who was sitting on the front steps of the flat at 1022--24--26 Greenwich, severely injuring her leg (necessitating amputation). Basili never felt his car cross the curb, and the curb gave no resistence to the forward motion of the car.

At the time of the accident the curb on Greenwich Street was two to three inches high. The Standard Specifications, Bureau of Engineering, Department of Public Works of the City and County of San Francisco required street construction contracts to provide for a 'normal curb' of six inches. The last time the street was improved was in 1926. At that time the City's Standard Specifications did not contain a provision requiring six-inch curbs. ¹

The complaint set forth the negligent driving of Basili and also alleged, Inter alia, that the City negligently and carelessly maintained, inspected, operated and controlled the street and sidewalk; that the curb was low, approximately on the same level as the sidewalk, and did not provide a buffer for automobiles; that the City was careless in inspecting and regulating the parking of vehicles; that there existed a dangerous condition; and that the area was rendered unsafe for use by the public, all of which was well known to the governing agency of the City which failed and neglected to remedy the condition.

Appellant contends that it was error to grant a summary judgment as a triable issue of fact has been raised by the amended complaint and by the facts elicited in the depositions and other discovery proceedings.

The law to be applied in summary judgment is well settled. The court in Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788, said: 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits (or evidence obtained by discovery proceedings) ² in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts * * *.' (See also Wilson v. Bittick, 63 Cal.2d 30, 34--35, 45 Cal.Rptr. 31, 403 P.2d 159.)

The liability of the City of San Francisco is provided for and limited by the California Public Liability Act. (Gov.Code, §§ 830--840.) ³ 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.'

Government Code section 830(a) defines 'dangerous condition' to mean: '(A) condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.'

The dangerous condition which appellant alleges creates the triable issue is the parking situation at the site of the accident--not only the low curbs, but all the circumstances relative to parking. Appellants argue that right-angle parking on the north side of this very steep street (Greenwich) requires the car to face north with both front wheels against the curb so that the entire car leans easterly with the slope; that this type of parking, together with the parallel parking on the south side of the street, creates a visibility problem for a driver backing out of his parking place, as well as a problem of control in applying the brakes or accelerator; and that the grade was so steep that a driver would tend to slide to the right if he let go of the steering wheel and would have difficulty in bringing his right foot upward from the accelerator to brake. This dangerous condition, argue appellants, was aggravated by the low curb--two to three inches high--which not only did not prevent Basili's auto from going onto the sidewalk, but which also failed to warn Basili when he passed over the curb and drove onto the sidewalk. Indicative that the situation is dangerous, appellants point to evidence in the record of a recommendation by the City's inspector that diagonal parking should be substituted for right-angle parking on Greenwich Street.

Appellants argue that the safest and most functional street, sidewalk and curb for the safety of persons using the sidewalk has been determined by respondent City and is set forth in their Standard Specifications of the Bureau of Engineering, Department of Public Works; that these specifications provide for a curb six inches in height; and that respondent's failure to meet the standards of safety which have the force of law constitutes a violation of mandatory duties and that the breach proximately contributed to the happening of the accident and injuries to Diana Curreri.

Section 815.6 of the Government Code provides: 'Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.' Enactment is defined by section 810.6 of the Government Code to be 'a constitutional provision, statute, charter provision, ordinance or regulation.' "Regulation' means a rule, regulation, order or standard, having the force of law, adopted by an employee or agency of the United States or of public entity pursuant to authority vested by constitution, statute, charter or ordinance in such employee or agency to implement, interpret, or make specific the law enforced or administered by the employee or agency.' (Gov.Code, § 811.6.)

Chapter 10, Article 15, Section 703 of the San Francisco Public Works Code states in part: 'All sidewalks shall be placed in accordance with specifications and rules which the Director of Public Works is hereby authorized to prepare in conformity herewith and As required for public convenience and...