Feingold v. Los Angeles County

• Decision Date: 22 September 1967
• Citation: 254 Cal.App.2d 622,62 Cal.Rptr. 396
• Court: California Court of Appeals Court of Appeals
• Parties: Sherwin Harvey FEINGOLD, an individual, Myra Feingold, an individual, Terri Lynn Feingold, a minor, Leslie Ann Feingold, a minor, and Sanford Allen Feingold, a minor, by their guardian ad litem, Sherwin Harvey Feingold, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, a political subdivision, Defendant and Respondent. Civ. 31534.

Page 396

62 Cal.Rptr. 396

254 Cal.App.2d 622

Sherwin Harvey FEINGOLD, an individual, Myra Feingold, an individual, Terri Lynn Feingold, a minor, Leslie Ann Feingold, a minor, and Sanford Allen Feingold, a minor, by their guardian ad litem, Sherwin Harvey Feingold, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, a political subdivision, Defendant and Respondent.

Civ. 31534.

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

Sept. 22, 1967.

Rehearing Denied Oct. 20, 1967.

Hearing Denied Nov. 15, 1967.

Young, Henrie & McCarthy and John C. McCarthy, Pomona, for plaintiffs and appellants.

Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Asst. County Counsel, for defendant and respondent.

FOX, Associate Justice. ^*

This is an appeal from a judgment of dismissal in favor of the County of Los Angeles following the sustaining of a demurrer to the second amended complaint without leave to amend.

Appellants seek to recover damages for personal injuries and loss of personal property sustained in a vehicular accident which occurred when the driver of a Ford pick-up truck in which plaintiffs were riding, as passengers, ran a boulevard stop and was struck in an intersection by a Volkswagen bus traveling on the through highway. The county was named as a defendant on the theory that the intersection constituted a dangerous condition since a promontory of land on adjacent property obstructed the view of a motorist on each of the two highways of approaching traffic on the other, and that no warning sign had been placed on the through highway warning of the intersection. Plaintiffs rely on the 1963 Governmental Tort Liability Act.

It will assist in understanding the problem at hand to have a somewhat detailed statement of the manner in which plaintiffs allege the accident occurred. It was in the intersection of Mulholland Highway, which runs east and west, and Malibu Canyon Road, which generally runs north and south, but 'arcs in a severe curve bearing to the west' immediately north of Mulholland Highway. Both highways are in Los Angeles County territory and are a part of the county's highway system and maintained by it. On August 15, 1965, Marianna Cooper was driving a 1965 Ford pick-up truck in a westerly direction on Mulholland Highway. Plaintiffs were passengers in this vehicle. Fred Lindsey was driving a Volkswagen bus southerly on Malibu Canyon Road. The plaintiffs, other than Myra Feingold who was riding in the right front seat of the Ford, were riding in the bed of the truck. As a result of the collision, each of the plaintiffs was injured.

The county had placed a stop sign to stop westbound traffic on Mulholland Highway before entering the intersection with Malibu Canyon Road. Defendant Cooper failed to stop and to yield the right-of-way to the vehicle driven by Lindsey. Plaintiffs further allege that the driver of the Ford truck 'failed to observe the 'Stop Ahead' warning sign and pavement markings located approximately 700 feet east of the intersection of Mulholland Highway with Malibu Canyon Road on Mulholland Highway, until she was passing through the stop sign. MARIANNA COOPER thereupon applied her brakes and stopped in the center of the intersection obstructing the south bound lane on Malibu Canyon Road. She remained there in disregard to her passengers safety until the car she was driving was hit by the Volkswagen bus.' In further description of the intersection, plaintiffs allege: '* * * Vehicles approaching and entering the intersection of Mulholland Highway and Malibu Canyon Road from the north on Malibu Canyon Road and, vehicles approaching and entering the intersection from the east on Mulholland Highway are unable to observe or exercise caution for each other because of the promontory of land on property adjacent on the northeast corner of the intersection until either or both vehicles are committed to the intersection, despite any degree of caution exercised by vehicles from the east on Mulholland Highway; consequently, west bound Mulholland vehicles which do or do not stop for the boulevard stop sign are in jeopardy upon entering the intersection from the southbound vehicles on Malibu Canyon Road as are those entering from the north on Malibu Canyon Road because of the topography of the intersection. A dangerous condition is created causing substantial risk of injury when the intersecting roads are used with due care and in a reasonable foreseeable manner because the county has failed to warn south bound traffic on Malibu Canyon Road of the intersection with Mulholland Highway.'

It is also alleged that the county 'failed to provide markings, or indications, or warnings of any kind, for south bound traffic on Malibu Canyon Road of the existence of, or the intersecting of Malibu Canyon Road with Mulholland Highway.' Plaintiffs further allege that their injuries were proximately caused by the concurrent negligence of the county in creating the dangerous condition of this intersection and in allowing it to continue, and in failing to provide a warning of this intersection for southbound traffic on Malibu Canyon Road. Finally, plaintiffs allege that the dangerous condition of the intersection had existed for a long time and should have been well known to the county; that plaintiffs were traveling in the pick-up truck in the capacity of passengers, and that they duly filed a claim with the county which was denied.

Section 835, Government Code, states that a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes: '(1) that the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was...