Ford v. Riverside City School Dist.

• Decision Date: 25 November 1953
• Citation: 121 Cal.App.2d 554,263 P.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: FORD v. RIVERSIDE CITY SCHOOL DIST. Civ. 4485.

Page 626

263 P.2d 626

121 Cal.App.2d 554

FORD v. RIVERSIDE CITY SCHOOL DIST.

Civ. 4485.

District Court of Appeal, Fourth District, California.

Nov. 25, 1953.

Rehearing Denied Dec. 16, 1953.

Hearing Denied Jan. 20, 1954.

Thompson & Colegate, H. L. Thompson, Roy W. Colegate and Robert D. Allen, Riverside, for appellant.

Reid & Waugh, Enos C. Reid, Best, Best & Krieger, Eugene Best and Gerald Brown, Riverside, for respondent.

MUSSELL, Justice.

This is an action for damages for personal injuries. It is alleged in the complaint that on May 10, 1949, plaintiff, a minor of the age of nine years, was a pupil at the Bryant elementary school in the city of Riverside; that during the morning recess, he and another third grade pupil (James Miller) were pulling thorns from a palm tree in a shrub area on the school grounds; that as James Miller was pulling a thorn, it suddenly came loose, the force of the pull driving the point of the thorn into the left eye of the plaintiff, severely injuring it; that the damages and injury to plaintiff were occasioned by the direct result of the negligent, reckless and careless management, operation, control and supervision of said school and school grounds by the defendants and that the defendants negligently, recklessly and carelessly maintained and allowed to be maintained, under their direction and control and with their knowledge the said shrub area and palm tree; that the said palm tree and the said palm tree thorns thereof is a dangerous agency and was so known by the defendants; that defendants failed to prune said palm tree and to prune off said palm tree thorns or to take any precautions to protect children from them.

The action was dismissed as to defendants Robertson and Moan and a jury trial was had resulting in a verdict for plaintiff in the sum of $15,000. Defendant Riverside school district appeals from the judgment.

Facts

The Bryant school buildings and grounds occupy a city block in a residential section in the city of Riverside. There are two school buildings on the property, the main building, located on the south side of the school grounds about midway between the southwest and southeast corners of the block and a small classroom building situated on the west side of the block a short distance northwest of the main building. The remainder of the school yard, with the exception of certain shrub areas is an open playground. The entire school ground is raised above the surrounding sidewalk and street level and a concrete wall encompasses the grounds on all sides. At the southeast corner of the block, the top of this concrete wall and the school ground are approximately two to three feet above the adjacent sidewalk. At the time of the accident, shrubs, including rose bushes, were planted next to the two buildings and there were two shrub areas, one at the southwest corner and the other at the southeast corner of the grounds. The area at the southeast corner covered a triangular area extending a distance of approximately thirty feet from the extreme corner in all directions inward toward the school ground. Seventeen or eighteen varieties of shrubs were planted in this area, many of which were bushy and close together, ranging in height from four to ten feet and in width from two to six feet. Among these shrubs were three ornamental date palm trees of the same species. Two of them were located near the borders of the area toward the playground and the third was situated in the extreme southeast corner of the yard, the base of the tree being about three to four feet inward from the concrete retaining wall. This tree was about ten or eleven years old, was about ten to twelve feet in height and the lower fronds were approximately four feet above the ground level. At the base of the branches or fronds of the tree there were sharp thorns or growths several inches in length. The remaining shrubs, trees and bushes formed a semicircular ring around this corner palm and the density and height of the other shrubs and trees rendered this tree almost invisible to a person looking to the southeast corner from any point within the playground area.

On the day of the accident, plaintiff was a third grade student. When the morning recess commenced, the entire third grade class, with the exception of plaintiff and his friend, James Miller, left the school building by the west door and proceeded immediately to their assigned playground area in the northwest section of the school yard. The two boys were the last to leave the building, 'at the back, the last of the children, the back part.' As soon as they arrived outside, they decided to proceed to the shrub area in the southeast corner of the block to obtain 'some palm thorns' with which to play. They observed a teacher on the west side of the playground and in order to avoid being seen by her, they 'waited until the teacher got to the other side of the building.' They then immediately went to the shrub area and 'then started playing with the thorns.' Plaintiff testified that while he was going over there, he had a feeling inside that he was doing something wrong. When the two boys reached the palm tree in the southeast corner of the shrub area, they commenced pulling on one of the 'thorns' or sharp spiney growths near the base of the branches of the tree. Plaintiff 'started pulling and twisting it' and 'got it a little loose'. At the time of the accident James was tugging at the thorn and plaintiff was standing behind him looking over his shoulder, when suddenly the thorn came out, James fell back, and the thorn went over his shoulder and into plaintiff's left eye.

For many years there had been a rule of the school prohibiting the pupils from entering or playing in the shrubs or shrub area. Pupils playing in this area would trample the ground and interfere with the custodian's proper care of the trees and shrubs. On occasion, children had injured or damaged the shrubs, and while playing in the area, were not readily observable to the teachers. At the commencement of each school term this rule was formally announced to the classes. On occasion, the principal would go from room to room reminding the children not to play in the shrubs and at times she sent formal notes to that effect to be read to the classes by the classroom teachers. When infractions of the rule occurred, students were individually cautioned against entering the forbidden area and sometimes were 'chased' and removed from the shrub area by the teachers and punished for violation of the rule. Plaintiff was thoroughly familiar with the rule at all times during the three years in which he attended the school and testified that about three weeks prior to the accident a message was read to his class by someone admonishing the children 'to stay from this corner--the shrubs, and to stay away from the thorns because they might hurt you.'

During the recess period there were approximately 200 pupils playing on the school ground and there were 34 students in the third grade. Mrs. Fulton, one of the teachers, was in charge of supervising pupils during the recess period. She was assisted by the principal (Miss. Robertson) and a safety committee of fifth and sixth grade students which was 'functioning'.

Appellant first contends that the evidence is wholly insufficient to establish liability against the school district under the Public Liability Act of 1923; that as a matter of law, the shrub area, together with the palm tree, was not a 'dangerous or defective condition of school grounds or property' within the meaning of said act and that the evidence is insufficient to show that 'the governing or managing board of the Riverside city school district or other board or officer or person having authority to remedy such condition' had knowledge of any dangerous or defective condition of the school ground.

The Public Liability Act of 1923 as it existed at the time of the accident, Stats.1923, p. 675, Deering's Gen.Laws, Vol. 2, Act 5619, subd. 2, is as follows:

'Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.'

Appellant argues that any physical object, be it real or person, stationary or moveable, can be deemed 'dangerous or defective' depending upon the use to which it is put, and that it would be difficult to conceive of any object commonly found upon the school ground, which, if applied to some hazardous use foreign to the purpose for which it was intended, could not become 'dangerous or defective', using such words in their proper sense, and that all of the common ornamental shrubbery found in southern California, harmless when devoted to the purpose for which it was created or maintained, can, by misuse, be converted into an instrumentality of danger to life and limb.

In Beeson v. City of Los Angeles, 115 Cal.App. 122, 132, 300 P. 993, 997, it is said:

'We are of the opinion that in passing and adopting section two of the act approved June 13, 1923, the Legislature intended to limit the liability of the city for damages resulting from defective streets, works, or property to damages suffered in the ordinary, usual, and customary use thereof. As was...