Gillespie v. City of Los Angeles

• Decision Date: 27 December 1950
• Citation: 225 P.2d 522,36 Cal.2d 553
• Parties: GILLESPIE et al. v. CITY OF LOS ANGELES et al. L. A. 21405.
• Court: California Supreme Court

Page 522

225 P.2d 522

36 Cal.2d 553

GILLESPIE et al. v. CITY OF LOS ANGELES et al.

L. A. 21405.

Supreme Court of California, in Bank.

Dec. 27, 1950.

Rehearing Denied Jan. 26, 1951.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., Victor P. Spero, James A. Doherty, and Leonard G. Husar, Deputy City Attys., all of Los Angeles, for appellant.

C. R. Montgomery, Robert E. Reed, Sacramento, Attys., Dept. of Public Works, Division of Highways, State of Calif., amicus curiae.

Ben C. Cohen, Leo Shapiro and S. S. Hahn, all of Los Angeles, for respondent.

TRAYNOR, Justice.

Route 156 is a state highway extending from Chatsworth to Topanga Beach in Los Angeles County. From Ventura Boulevard in the city of Sherman Oaks west to the Pacific Ocean for about twenty miles through Topanga Canyon, the highway, commonly known as Topanga Canyon Road, is a twisting paved mountain road varying in width form 20 to 24 feet, with 6 to 8 foot shoulders of rock and oil or decomposed granite. About .86 of a mile of Topanga Canyon Road lies within the corporate limits of the City of Los Angeles.

On the morning of September 5, 1943, the burned wreckage of a 1933 Hupmobile sedan owned by plaintiff Ottie Gillespie was discovered at the bottom of Topanga Canyon below the part of the highway within the Los Angeles city limits, about 3.2 miles northeast of the junction of Topanga Canyon Road and the Roosevelt Highway at Topanga Beach. In the wreckage were the charred bodies of six people, from nineteen to twenty-four years of age. There were no survivors of the accident and no eyewitnesses thereto.

Plaintiffs, surviving relatives of the victims of the accident, brought this action for wrongful death in the Superior Court of Los Angeles County, joining as defendants the City of Los Angeles and the State of California. The complaint alleged that the accident was caused by defendants' negligence in the design, construction, and maintenance of the highway, in that 'said highway is so laid out and constructed as to make it appear that the same is straight and continuous at said point (at which the automobile presumably left the road) when in fact the same prescribes a horseshoe turn or curve, swinging sharply inward and returning to a line approximately even with the line of said highway immediately prior to said abrupt turn * * * the distance from said highway at said point to the bottom of said embankment being more than 150 feet * * * that there were and are no lights, blinkers, or warning signals of any kind or character at the approach to said curve to indicate or disclose the existence thereof * * * that there were and are no fences, guard rails, barriers, barricades or embankments or other safety devices around said curve or the approach thereto to apprise persons of the fact that the said highway curves at said point and does not continue in a straight direction * * * that at said time and place and as a direct and proximate result of the said dangerous and defective condition as aforesaid, the said automobile * * * went off the highway and fell to the bottom of the embankment, at said point a distance of more than 150 feet.' It is plaintiffs' theory that by reason of the alleged negligence of the city and the state in failing to warn approaching drivers of the existence of the curve, the driver of the automobile, while exercising due care for his own safety and that of his passengers, drove straight ahead on the road, not knowing that it curved sharply inward, and plunged off the road to the bottom of the canyon. On the state's motion, a change of venue to Sacramento County was granted. The trial court there sustained the state's objection to the introduction of any testimony and the action was dismissed against the state on the ground that the suit was one against it in its sovereign capacity to which it had not consented. Plaintiffs' motion for retransfer to Los Angeles County for convenience of witnesses was granted. The cause proceeded to trial before a jury against the city, and the jury returned verdicts for plaintiffs aggregating $110,000. The city appeals from the judgments entered thereon.

The city's principal contention is that it was not legally responsible for the condition of the state highway where the accident occurred because it had no control over, or authority with respect to, the maintenance of the highway. Plaintiffs contend, however, that under the provisions of the Public Liability Act of 1923, 2 Deering's Gen.Laws, Act 5619, now Government Code, § 53051, the city is liable for dangerous or defective conditions in a highway whether or not it has control over it, and that in any event it had enough control over the highway in question to remedy the condition had it so wished.

The Public Liability Act of 1923 provides: '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 * * * 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.' (Italics added.)

Although it is clear from the wording of the statute that a city cannot be liable for a dangerous or defective condition of a public street or highway unless it has authority to remedy the condition, plaintiffs contend that the cases of Shea v. City of San Bernardino, 7 Cal.2d 688, 62 P.2d 365, Bosqui v. City of San Bernardino, 2 Cal.2d 747, 43 P.2d 547, and Rose v. County of Orange, 94 Cal.App.2d 688, 211 P.2d 45, establish the rule that even if a municipality is without power to correct a dangerous or defective condition, it is under a duty to warn of its existence or request those with the necessary authority to remedy it. We cannot agree with this contention.

In the Bosqui case a viaduct that was part of the system of city streets was allowed to fall into disrepair. The city contended that under an order of the railroad commission, the utility operating the railroad over which the viaduct passed had the sole duty of repair. Far from holding that the city's authority to remedy the condition was not a necessary prerequisite to liability under the Public Liability Act, the court took care to note that the order of the commission did not deprive the city of control over the viaduct or relieve it of its duty to remedy the condition.

In the Shea case a city street crossed a railroad track. The city contended that the dangerous conditions was caused by the elevation of the rails, over which the railroad commission had exclusive jurisdiction. The court held that the city was under a duty to request the commission to correct the condition or to warn the public of the danger.

In the Rose case a county road ran at right angles into a state highway and terminated. There was a dangerous ditch at the side of the state highway opposite the end of the county road. The court held that even though the county had no power to correct the dangerous condition bordering the state highway, it was under a duty to warn persons on the county road of the danger lying at its end.

Both the Shea and the Rose cases are thus examples of situations where streets over which the city or county had control were made dangerous by conditions that the local governments could not control. In both cases, however, the city or county had authority at least to warn of the dangers. They had control over their own highways and authority therefore to post warnings along those highways of the dangers created by conditions contiguous thereto.

In the present case, however, the condition of the highway did not make a city street dangerous. The danger lay wholly on the state highway itself. If the city had no authority to remedy the condition of the state highway where the accident occurred it cannot be liable under the terms of the Public Liability Act for failure to do so.

Section 100 of the Streets and Highways Code, in effect in 1943 at the time the accident happened, provided: 'The (state) department (of public works) shall have full possession and control of all State highways. * * * The department shall maintain any existing traversable highway which is between the termini of, and approximately on, any route included in the State highway system. * * *'

Section 27 of the same code provides in part:

'As used in the general provisions and in Divisions I and II of this code, 'maintenance' includes:

'(a) The preservation and keeping of rights of way, and each type of roadway, structure, and facility, in the safe and usable condition to which it has been improved or constructed * * *.

'(b) The necessary provision for special safety conveniences and devices. * * *

'The degree and type of maintenance for each highway, or portion thereof, shall be determined in the discretion of the authorities charged with the maintenance thereof, taking into consideration traffic requirements and moneys available therefor.'

Section 204 provides: 'The department shall exercise the same powers and duties with respect to State highways within cities as with respect to other State highways.'

Under these provisions the state department of public works, not the city, has authority to remedy dangerous or defective conditions on state highways within the city limits. 'The degree and type of maintenance' including 'safety conveniences and devices' are to be determined by the state agency. It follows that the city...