Harper v. Vallejo Housing Authority

• Decision Date: 06 June 1951
• Citation: 104 Cal.App.2d 621,232 P.2d 262
• Parties: HARPER v. VALLEJO HOUSING AUTHORITY et al. Civ. 7805.
• Court: California Court of Appeals Court of Appeals

Page 262

232 P.2d 262

104 Cal.App.2d 621

HARPER v. VALLEJO HOUSING AUTHORITY et al.

Civ. 7805.

District Court of Appeal, Third District, California.

June 6, 1951.

Dunnell, Herbert & Dunnell, Fairfield, for appellant.

Taft, Wright & Hopkins, Vallejo, for respondent.

VAN DYKE, Justice.

This action was brought by E. H. Harper as guardian ad litem of his daughter Mary, a minor, who at the time of the accident, wherein she received the injuries on account of which this suit was brought, was an infant two years of age. Her parents were tenants of a dwelling leased to them by the appellant Vallejo Housing Authority and situated within a housing project known as Chabot Acres in Vallejo. In various places within the project were areas designated on the plat of the project as playgrounds or play areas and one of these was the scene of the accident. The area, which lies between two rows of project houses, is located off the street, but ramps over street gutters give vehicular access to it. A portion of the area, measuring about 50 X 150 feet, had been paved, and close to the block of pavement there had been installed a structure made up of iron pipes or bars which the witnesses called 'monkey bars'. These things were done by the Authority. Children used the monkey bars; both adults and children used the paved area for recreation. Over the course of several years before the accident the Authority had permitted, or at least knowingly acquiesced in, the use of the entire area by persons desiring to park motor vehicles, to repair them, and in some instances to garage them in small garages located about the area by the owners of these vehicles. At the time of the accident defendant Joe Robbins was moving a motor vehicle in close proximity to the paved area and to the monkey bars. While backing up his vehicle he ran against the minor, Mary Harper, inflicting physical injury. A few minutes before she was hurt the child had been playing at the bars. When struck she and two other children were walking across the area. A jury returned a verdict in the sum of $1,750 in favor of plaintiff and respondent. Both the suit and the recovery were limited to general damages suffered by the minor. Robbins has not appealed.

The negligence of which the Authority was alleged to have been guilty was that of permitting the recreational area to be so used by drivers and owners of motor vehicles as to render the area dangerous and defective for recreational use. That such conduct on the part of those in charge of such an area may constitute actionable negligence has been held by the appellate courts of this State in a number of cases. See Bauman v. City & County of San Francisco, 42 Cal.App.2d 144, 108 P.2d 989; Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 110 P.2d 1044.

Appellant contends that as a matter of law no dangerous nor defective condition existed on the premises at the time the accident occurred. We think this question was one of fact for the jury to determine, and that the evidence furnishes support for its determination. What constitutes a dangerous or a defective condition cannot be settled by hard and fast rules. Each case must depend upon its own state of facts; and it is generally a question of fact for the jury to determine. Bauman v. City & County of San Francisco, supra. As stated by the court in the cited case:

'* * * The jury was justified in finding that the playground was dangerous and defective for any of the following reasons: That the playground was rendered dangerous or defective by the negligence of appellant in permitting the playing of hard baseball in dangerous proximity to the sand box; that under the circumstances here existing it was the duty of appellant, if hard baseball was to be permitted to be played in the north end of the field, to erect some barrier for the protection of those playing in the small children's section; or the appellant negligently failed to properly supervise the playground by either failing to prevent the boys from playing hard baseball in dangerous proximity to the small children's section or in negligently failing to keep the small children away from the sand box while hard baseball was being played nearby. 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. Huff v. Compton City Grammar School Dist., 92 Cal.App. 44, 267 P. 918.' [42 Cal.App.2d 144, 108 P.2d 994.]

We think what has been quoted is applicable to the situation presented by the record here. Not only was the play area between the rows of houses originally intended for use as such by the Authority operating the project, but to its knowledge it had been used as such and it had indicated that such was at least one of its main purposes by improving a portion as stated heretofore any by the installation of the monkey bars for the use of children. To permit concurrent use by owners of motor vehicles, even to a limited extent, could by the jury have been found to have created a continuous, dangerous condition.

Appellant contends that any negligence upon its part cannot be held here to have been a proximate cause of the minor's injuries. The same contention was made in Taylor v. Oakland Scavenger Co., supra, a school yard case. The injury had been inflicted by the truck of the scavenger company and both the company and the school district had been held liable. Each defendant argued that the negligence of the other was the only proximate cause of the injury and the court said:

'* * * If an injury is produced by the concurrent effect of two separate wrongful acts, each is a proximate cause of the injury, and neither can operate as an efficient intervening cause with regard to the other. * * * The fact that neither party could reasonably anticipate the occurrence of the other concurrent cause will not shield him from liability so long as his own negligence was one of the causes of the injury.' [17 Cal.2d 594, 110 P.2d 1049.]

What is there said answers the contention of the appellant here with respect to proximate cause.

Appellant contends that the minor child stood in the shoes of its parents, and was entitled to recover only if the parents were so entitled if one of them had been injured. But the liability of the appellant was grounded upon that of a possessor of land 'who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him'. Such a possessor 'is subject to liability to his lessee and others lawfully upon the land with the...