Gentekos v. City and County of San Francisco

• Decision Date: 23 September 1958
• Citation: 163 Cal.App.2d 691,329 P.2d 943
• Court: California Court of Appeals Court of Appeals
• Parties: Mimis J. GENTEKOS, Plaintiff, Appellant and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant, Respondent and Appellant. Civ. 17630.

Page 943

329 P.2d 943

163 Cal.App.2d 691

Mimis J. GENTEKOS, Plaintiff, Appellant and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant, Respondent and Appellant.

Civ. 17630.

District Court of Appeal, First District, Division 1, California.

Sept. 23, 1958.

Rehearing Denied Oct. 23, 1958.

Hearing Denied Nov. 19, 1958.

Philander Brooks Beadle, John A. Hodges, San Francisco, for plaintiff and appellant.

Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for defendant and appellant.

PETERS, Presiding Justice.

Plaintiff, Mimis Gentekos, tripped and fell over a broken place in the sidewalk on the north side of Eddy Street in San Francisco. He brought this action against the city pursuant to sections 53050 and 53051 of the Government Code for the injuries allegedly then received. After defendant's motions for a nonsuit and for a directed verdict had been denied, the jury returned a verdict for the plaintiff in the sum of $8,000. Judgment was entered accordingly. The defendant then moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court granted both motions, but limited the new trial to the issue of damages. Plaintiff has appealed from the judgment notwithstanding the verdict, and defendant has appealed from the limited new trial order, claiming that if a new trial is to be granted it should be on all issues.

The making and granting of these two apparently conflicting motions in permitted by statute. § 629, Code Civ.Proc. When both motions are granted 'the order granting a new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed and the order granting a new trial * * *, if appealed from, is affirmed.' § 629, Code Civ.Proc.

The accident happened shortly after 9 a. m. on July 15, 1954, on the sidewalk located on the north side of Eddy Street between Mason and Taylor Streets in downtown San Francisco. The sidewalk in this area is about 12 feet wide. The day was dry and the sky was overcast. Plaintiff lives about a block from where he fell. He was walking towards Market Street. He had walked along Eddy Street occasionally in the past and knew that the sidewalk was 'kind of rough down there' but had never observed the broken place where he fell. At the time of the accident there was no other pedestrian near the place where it occurred.

The defect in the sidewalk was located about seven feet from the curb and between a laundry and the entrance to the Empress Hotel. The sidewalk for some distance surrounding the defect is in good condition. The defective section was pie-shaped. Its longest dimension, which was parallel to the curb, measured 13 inches, while at the east end it measured 10 1/2 inches and on the west end 4 1/2 inches. The broken portion was loose and tilted so that the west side of the break was raised about an inch and a quarter above the sidewalk. The edges of the break were irregular and jagged, and some parts of the broken piece were missing. There was a hollowed out space below a part of the broken portion so that in this area the broken piece projected about two inches above the bottom of the depression. The plaintiff was walking easterly and fell over the westerly edge of the defect, at the point where it is highest above the surrounding sidewalk. These physical facts were testified to by an engineer who examined the area the afternoon of the accident, and by several lay witnesses. Photographs taken the day of the accident amply corroborate the descriptive testimony.

There was substantial evidence that the defect had existed for about six months before the accident. There is some conflict on this issue, but this being an appeal from a judgment notwithstanding the verdict, the evidence most favorable to the plaintiff must be accepted as true. During this six-month period several people stumbled over the defect, but there is no evidence that anyone had fallen. There was no evidence that anyone had ever complained to the city about the condition, and admittedly there was no evidence that the city otherwise had actual notice that the defect existed.

The Appeal from the Judgment Notwithstanding the Verdict.

This action was brought under the Public Liability Act now codified in sections 53050 and 53051 of the Government Code. Under section 53050 the term 'public property' is defined as including the public streets. Section 53051 provides that:

'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.'

Under these provisions, if the conditions set forth in the section are shown to exist, a city is liable for the dangerous and defective condition of a sidewalk resulting in injury to a pedestrian. Ackers v. City of Los Angeles, 40 Cal.App.2d 50, 104 P.2d 399.

Under the sections the conditions that must exist are, first the condition must be a 'dangerous or defective' one; second, the city must have knowledge of the condition; and third, the condition must exist for a reasonable time after acquiring such knowledge so that the city has a reasonable opportunity to repair the condition.

The duty imposed on the city to keep its sidewalks in repair is not that of an insurer. The duty is to maintain the streets and sidewalks in a reasonably safe condition. Whether the city has complied with this requirement, that is, whether the condition complained of constitutes a 'dangerous or defective' condition is normally a question of fact. George v. City of Los Angeles, 11 Cal.2d 303, 79 P.2d 723. A condition is a dangerous or defective one if the hazard is one from which injury may reasonably be anticipated to those properly using the area for the purpose intended. Jones v. City of Los Angeles, 104 Cal.App.2d 212, 231 P.2d 167. Whether a particular condition is a dangerous or defective one is generally a question of fact. Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal.App.2d 215, 82 P.2d 216; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 108 P.2d 989. Of course the condition must be one that is truly dangerous or defective. If it is trivial then it is neither dangerous nor defective, and, as a matter of law, the city is not liable. The condition existing must be such that it constitutes a danger to persons using the sidewalk in a lawful manner. Bigelow v. City of Ontario, 37 Cal.App.2d 198, 99 P.2d 298. In other words, a city is not liable for minor defects that could not reasonably be anticipated to result in accidents (Whiting v. City of National City, 9 Cal.2d 163, 69 P.2d 990; Balkwill v. City of Stockton, 50 Cal.App.2d 661, 123 P.2d 596), but the public is entitled to be protected from even small defects if injury is likely to result from them. Barrett v. City of Sacramento, 128 Cal.App. 708, 18 P.2d 356; Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.2d 643. The fact that a person has been proximately injured as a result of the defect is some indication that the condition is dangerous or defective. Balkwill v. City of Stockton, 50 Cal.App.2d 661, 123 P.2d 596; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 108 P.2d 989; see generally 35 Cal.Jur.2d pp. 296 to 305, §§ 511 to 518.

In the present case it cannot be said, as a matter of law, that the defect was so trivial that reasonable minds could not differ as to whether the condition was dangerous or defective. That being so, that was a fact question.

But this question of whether a defect is or is not a minor one becomes important in another connection. Before a city can be liable under the public liability act it must have knowledge of the dangerous or defective condition. Watson v. City of Alameda, 219 Cal. 331, 26 P.2d 286; Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725; Howard v. City of Fresno, 22 Cal.App.2d 41, 70 P.2d 502. But actual notice of the dangerous or defective condition is not required. The finder of the fact may find that the city has constructive knowledge, if the condition has existed long enough that it may be inferred that a reasonable inspection would have ascertained its existence. Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.2d 643; Van Dorn v. City & County of San Francisco, 103 Cal.App.2d 714, 230 P.2d 393. A city will be charged with constructive notice of substantial defects which have existed for some time, and which are so conspicuous that a reasonable inspection would have disclosed them. Peters v. City & County of San Francisco, 41 Cal.2d 419, 260 P.2d 55. However, if the defect is so minor that it would not be disclosed by a reasonable inspection no liability attaches to the city. There are a subtantial number of cases holding that, although a particular defect may have created a dangerous or defective condition, it was not so conspicuous as to give the city constructive notice of its existence. See Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725; Whiting v. City of National City, 9 Cal.2d 163, 69 P.2d 990; Balmer v. City of Beverly Hills, 22 Cal.App.2d 529, 71 P.2d 854; Beckley v. Vezu, 23 Cal.App.2d 371, 73 P.2d 296; Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977; Cheyney v. City of Los Angeles, 119 Cal.App.2d 75, 258 P.2d 1099; Graves v. Roman, 113 Cal.App.2d 584, 248 P.2d 508; Ness v. City of San Diego, 144 Cal.App.2d 668, 301 P.2d 410; Beck v. City of Palo Alto, 150 Cal.App.2d 39, 309 P.2d 125; Sischo v. City of Los Banos, 26 Cal.App.2d 642, 80 P.2d 116, 1020; Sischo v. City of Los Banos, 37 Cal.App.2d 717, 100 P.2d 305; Meyer v. City of San Rafael, 22 Cal.App.2d 46, ...