Dudum v. City of San Mateo

• Decision Date: 05 February 1959
• Citation: 334 P.2d 968,167 Cal.App.2d 593
• Court: California Court of Appeals Court of Appeals
• Parties: Nicolas Esa DUDUM, Francis Dudum, a minor, by his guardian ad litem, Nicolas Esa Dudum, and Said Bajalia, Plaintiffs and Appellants, v. CITY OF SAN MATEO, a municipal corporation, Defendant and Respondent. Civ. 18104.

Page 968

334 P.2d 968

167 Cal.App.2d 593

Nicolas Esa DUDUM, Francis Dudum, a minor, by his guardian ad litem, Nicolas Esa Dudum, and Said Bajalia, Plaintiffs and Appellants, v. CITY OF SAN MATEO, a municipal corporation, Defendant and Respondent.

Civ. 18104.

District Court of Appeal, First District, Division 2, California.

Feb. 5, 1959.

Jack H. Werchick, San Francisco, for appellants.

Ropers & Majeski, Redwood City, for respondent.

DRAPER, Justice.

Plaintiffs appeal from summary judgment (Code Civ.Proc. § 437c) in favor of defendant city. The action seeks damages for personal injuries allegedly suffered in the collision of an automobile driven by plaintiff Nicolas Dudum with a truck driven by defendant Goin and owned by him and other defendants. Plaintiff Nicolas, with the other plaintiffs as passengers, drove east on Second Avenue in San Mateo. The truck was travelling south on Delaware Street, and the vehicles collided in the intersection of these two streets. Plaintiffs' claim against defendant city is based upon the assertion that the stop sign at the southwest corner of the intersection--the sign which would require plaintiffs' car to stop--was obscured by a tree, thus constituting a dangerous or defective condition of public property (Government Code, § 53051), which, with the concurring negligence of defendant Goin, proximately caused the collision and the resulting injury to the three plaintiffs.

Validity of the summary judgment is to be determined by the sufficiency of the affidavits considered upon the motion (McComsey v. Leaf, 36 Cal.App.2d 132, 133, 97 P.2d 242), and deficiencies in the affidavits cannot be remedied by resort to controverted allegations of the pleadings (Kimber v. Jones, 122 Cal.App.2d 914, 265 P.2d 922; Coyne v. Krempels, 36 Cal.2d 257, 223 P.2d 244).

Defendant city filed the affidavit of its city engineer averring that at or before the accident there was no tree growing in or forming any part of any public property at the southwest corner of this intersection, and that the only trees growing in the vicinity of the corner are situated on private property. Plaintiffs' counter-affidavit alleges that the stop sign 'was obscured by the branches and foliage of a tree that was rooted not far from the stop sign.' Looking to the omissions as well as the allegations of the two affidavits, we must conclude that the sign was in fact obscured by branches and foliage of a tree, but that the obscuring tree was located upon private property. Whether the branches of this privately-owned tree overhung public property cannot be determined.

Stop signs are 'public property' within the meaning of Government Code, § 53051. Irvin v. Padelford, 127 Cal.App.2d 135, 273 P.2d 539; Ervin v. City of Los Angeles, 117 Cal.App.2d 303, 256 P.2d 25; Rose v. County of Orange, 94 Cal.App.2d 688, 211 P.2d 45. Respondent, however, contends that the dangerous or defective condition must be found in the public property itself. It is true that in Ervin the stop sign fell and struck a pedestrian, in Rose it had fallen and had been lying on the ground for some days, and in other traffic signal cases (Silva v. County of Fresno, 63 Cal.App.2d 253, 146 P.2d 520; Bady v. Detwiler, 127 Cal.App.2d 321, 273 P.2d 941; Hoel v. City of Los Angeles, 136 Cal.App.2d 295, 288 P.2d 989) the signal was itself defective.

But the rule is clear that a city's liability under Government Code, § 53051 may be based upon factors other than structural or mechanical defects. 'There can be no doubt that 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.' Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 153, 108 P.2d 989, 994; see also Huff v. Compton City Grammar School Dist., 92 Cal.App. 44, 267 P. 918. In Teilhet v. County of Santa Clara, 149 Cal.App.2d 305, 308 P.2d 356, 358, this court rejected the contention that 'the dangerous or defective condition contemplated by the statute must be a tangible defect and that smoke in the atmosphere over a public highway cannot constitute such a condition,' and affirmed judgment against the county in favor of a driver whose automobile collided with another on the smoke-obscured highway.

The rule is clear that a municipality is not liable for failure to install a boulevard stop sign (Perry v. City of Santa Monica, 130 Cal.App.2d 370, 279 P.2d 92), or to direct traffic at an intersection (Goodman v. Raposa, 151 Cal.App.2d 830, 835, 312 P.2d 65). But once a stop sign is installed, the city's failure to maintain it properly (in the absence of determination that the protected street is no longer a through or arterial highway) creates an actionable condition of public property. Irvin v. Padelford, supra, 127 Cal.App.2d 135, 273 P.2d 539; Rose v. County of Orange, supra, 94 Cal.App.2d 688, 211 P.2d 45. In the latter case the fact that the stop sign had been lying on the ground for some days before the accident might be deemed to indicate a defective condition of its supporting standard, which of course was public property. But in Irvin, the stop sign was wholly removed because the street light pole to which it was affixed had been taken down by city employees to repair wiring. There was no showing of any defect in the stop sign. Liability was based on the fact that its total absence, when a driver on the through...