Hawk v. City of Newport Beach

• Decision Date: 14 February 1956
• Court: California Supreme Court
• Parties: Montie HAWK and David Hawk, by and through his guaridian ad litem, montie Hawk, Plaintiffs and Appellants, v. CITY OF NEWPORT BEACH, a Municipal Corporation, Defendant and Appellant. L. A. 23913

Page 48

293 P.2d 48

46 Cal.2d 213

Montie HAWK and David Hawk, by and through his guaridian ad litem, montie Hawk, Plaintiffs and Appellants, v. CITY OF NEWPORT BEACH, a Municipal Corporation, Defendant and Appellant.

L. A. 23913.

Supreme Court of California

Feb. 14, 1956.

Paul T. Erskine, Alhambra, and W. J. Schall, San Diego, for plaintiffs and appellants.

Z. B. West, Santa Ana, Belcher, Kearney & Fargo and Stevens Fargo, Los Angeles, for defendant and appellant.

SPENCE, Justice.

This action was brought against the defendant city by David Hawk, a minor, through his father, Montie Hawk, acting as guardian ad litem, and also by said Montie Hawk acting for himself, for damages for injuries to the minor, and for expenses incurred by the father by reason of such injuries. Judgment for plaintiffs was entered upon a jury verdict, and the trial court granted a new trial. Plaintiffs appeal from the order granting a new trial. Defendant appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict. The principal question argued on all three appeals is whether the evidence presented would justify the imposition of liability upon the defendant city under section 53051 of the Government Code, sometimes called the Public Liability Act.

Section 53051 of the Government Code provides: '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.'

At the time of the accident and for many years prior thereto, the defendant city owned, maintained, and supervised a recreational beach area to which it invited the public. It also maintained signs indicating the location of a parking area in which visitors to the beach could park their cars. A fee was charged for parking, and the city participated in the revenue obtained from this parking area.

The injured plaintiff, David, a boy of 17 at the time of the injury, parked his car and went swimming at the city beach. After spending some time on the main beach, he proceeded to a cove area separated from the main beach by a large 'camelback' rock, but in fairly close proximity to the main beach and connected with it by well-defined paths. On one side of the cove were located large rocks which project out of the water at varying heights to a point about 180 to 200 feet from the shore. David had not used the cove before, but on previous occasions he had observed people diving from the rocks. He testified that when he reached the cove he saw 'all the kids over there swimming and diving,' and he dicided to try out his diving. In wading out to the rocks the water came only to his waist, and he could not see the bottom because of the murky water. David followed an older boy to the farthest rock and watched him dive into the water and swim away unharmed. David then climbed to the top of this rock, which stood about eight feet above the level of the surrounding water, and dived into the water. He apparently struck the bottom and severely injured himself.

For many years, with knowledge on the part of the city, some of the patrons of the beach had used this rock as a diving platform. The captain of the lifeguards, an employee of the city with authority to take precautionary measures to protect the users of the beach, testified that he himself had used the rock for diving purposes during his teen-age years, and that his lifeguards reported to him about once a week that patrons of the beach were using the rock for diving purposes. He also knew that on two prior occasions persons had been injured by diving from this rock. He had instructed his roving lifeguards to warn anyone about to dive from the rocks. However, there were no lifeguards regularly posted at the cove, and the roving lifeguards were able to observe this area only at infrequent intervals.

Plaintiffs contend that the rock from which David dived was a 'dangerous or defective condition' because by its characteristics, its location and its use, it had become a part of the defendant city's recreational facilities; that the city had knowledge that it was being used for diving and that such use was dangerous; and that it thereafter failed to provide any adequate warnings or safeguards, which action was 'reasonably necessary to protect the public against the condition.' Gov.Code, § 53051. Defendant contends that as a matter of law the rock and its surrounding area did not constitute a 'dangerous or defective condition' because they were natural conditions unaltered by any act of the defendant city; that the use of the rock as a diving platform had not been invited; that the rock was neither designed nor intended to be used as a diving platform; and that the rock was relatively inaccessible and could become dangerous to a person only through his voluntary act of using it for an obviously dangerous purpose, such as a diving platform.

Although a public agency is not an insurer and is not required to keep its property in such condition as to preclude the possibility of injury, Whiting v. National City, 9 Cal.2d 163, 166, 69 P.2d 990; Rodkey v. City of Escondido, 8 Cal.2d 685, 689, 67 P.2d 1053; Electrical Products Corp. v. County of Tulare, 116 Cal.App.2d 147, 153, 253 P.2d 111, a natural condition may nevertheless constitute, under certain circumstances, a dangerous or defective condition so as to permit the imposition of liability. See Smith v. County of San Mateo, 62 Cal.App.2d 122, 144 P.2d 33. It is the fact that a condition involves an unreasonable risk of injury to the public that renders it a dangerous or defective condition within the meaning of the Public Liability Act, Jones v. City of Los Angeles, 104 Cal.App.2d...