Hoover v. City of Fresno

• Decision Date: 16 April 1969
• Citation: 272 Cal.App.2d 7,77 Cal.Rptr. 146
• Court: California Court of Appeals Court of Appeals
• Parties: L. H. HOOVER, Plaintiff and Appellant, v. CITY OF FRESNO et al., Defendants and Respondents. Civ. 930.

Page 146

77 Cal.Rptr. 146

272 Cal.App.2d 7

L. H. HOOVER, Plaintiff and Appellant, v. CITY OF FRESNO et al., Defendants and Respondents.

Civ. 930.

Court of Appeal, Fifth District, California.

April 16, 1969.

Rehearing Denied May 15, 1969.

Hearing Denied June 11, 1969.

Lewis J. Yapp, Gladstein, Andersen, Leonard & Sibbett, San Francisco, for appellant.

Parichan & Krebs and Harold A. Parichan and R. W. Levy, Fresno, Cyril Viadro, San Francisco, for respondents.

CONLEY, Presiding Justice.

The plaintiff, who was seriously injured in an explosion, appeals from the summary judgment against him granted to two of the defendants, City of Fresno and its fire marshall, Floyd E. Watson. Appellant also appeals from the order denying his motion for a new trial; one would assume that by this time every lawyer in the state would know that there is no such thing, currently, as a permitted appeal from the denial of a motion for a new trial. In Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907, 908, it was said at the beginning of the opinion that the attempted appeal from a refusal to grant a new trial '* * * was dismissed from the bench with an admonition from the Chief Justice to counsel and to members of the bar generally to cease appealing from such an obviously nonappealable order.' The purported appeal in this case from the denial of the motion for a new trial is, therefore, dismissed, and the propriety of the ruling in question will be considered as provided by law in a review of the judgment.

This action was commenced by L. R. Hoover after he received alleged serious injuries by being blown from a hoist truck parked on the sidewalk and North Blackstone Avenue while he was attempting to remove a plastic sign from a pole at the boundary line of 864 North Blackstone Avenue with the public sidewalk. Working for his employer, Ad-Art Sign Company, Inc., he intended to cut the sign down and was using an acetylene torch in the process. Mr. Hoover did not know what danger he was in; ten years earlier a gasoline service station had occupied the property, but it had been removed from the area in 1952 and the service station had been succeeded by a used car lot. Five underground gasoline storage tanks had been installed in the gas station property and when the area was converted to a used car lot the tanks remained underground without being filled with earth, sand or concrete as required by a city ordinance. An inconspicuous vent pipe, however, unknown to Mr. Hoover, led from the underground area containing the presumably empty tanks to a point on the sidewalk area near the pole bearing the sign which Mr. Hoover was attempting to remove. When he lighted his acetylene torch for the purpose of cutting down the sign, there was an explosion at the vent pipe which threw him from his perch on the hoist and blew up a portion of the lot in which the tanks had been left and adjoining property.

The original complaint in the case contained three causes of action, and all of the successive persons who had owned or conducted business on the premises located at 864 North Blackstone Avenue were named as defendants, together with the respondents herein, the City of Fresno and Floyd E. Watson, its fire marshal, and other city officials.

The original complaint contained the following allegations:

VIII

'On the 14th day of August, 1962, at the time and place aforesaid, there was located in the ground on said 864 North Blackstone Avenue, Fresno, California, several large fuel oil storage tanks. At said time and place, there was extending from one or more of said fuel oil storage tanks, a vent pipe which was adjacent to the pipe supporting the aforesaid outdoor advertising sign. The existence of said underground fuel oil storage tanks, and the aforesaid vent pipe were at all times mentioned herein, unknown to Plaintiff herein.

IX

'Plaintiff is informed and believes, and upon that ground alleges, that at all times mentioned herein the fuel oil storage tanks connected to the aforesaid vent pipe was partially filled with a fuel oil of high volatility.

X

'That on or about the 14th day of August, 1962, at the time and place aforesaid, Plaintiff is informed and believes, and upon that ground alleges, that he ignited a blow torch, for the purpose of removing the aforesaid outdoor advertising sign from the pole upon which it had been mounted, at a time when said Plaintiff was standing upon the platform of a hoist truck, approximately 15 feet above the ground. That at said time and place, an explosion occurred, directly beneath Plaintiff, in and about the fuel oil storage tank, causing Plaintiff to be thrown with great force and violence from the platform upon which he was standing to the ground beneath him, inflicting upon Plaintiff serious injuries and damages, as hereinafter set forth.'

The complaint continues, alleging that each of the defendants '* * * knew or by the exercise of reasonable care should have known, that the partially filled fuel oil storage tank, with the vent pipe leading therefrom immediately underneath the point where the Plaintiff was working created an unknown and unreasonable risk to the Plaintiff,' that each defendant was negligent in that, knowing of the danger involved, he or it failed to give warning of the dangerous and defective condition and failed to maintain the premises in a reasonably safe condition and negligently allowed explosive gases to escape from the fuel oil storage tank and to accumulate in the vicinity of the place where plaintiff was working; it is also alleged that each defendant negligently failed to inspect the premises properly and failed to remove said fuel oil storage tanks or to fill them as required by city ordinance with earth, sand or concrete. The first cause of action asked for damages of $300,000, besides medical and hospital costs and demanded compensation also for loss of wages. The second and third causes of action also charged the defendants with negligence and prayed for the same amount of damages.

Later the plaintiff filed an amended complaint and thereafter a second amended complaint. In the last pleading the plaintiff added a fourth cause of action which incorporated by reference all of the allegations of the first, second and third causes of action and, also, contained a specific charge against the respondents through the following allegations:

II

'Plaintiff is informed and believes, and upon that ground alleges, that on or about August 14, 1962, and for many years prior thereto, the underground fuel oil storage tank that exploded on said date as alleged in plaintiff's first cause of action herein, was located partially upon private property and partially upon public property, owned by defendant City of Fresno, and under the control of defendant City of Fresno, its officers, agents, servants and employees, sued as defendants herein.

III

'That for a long time prior to the date of August 14, 1962, said defendant City of Fresno, its officers, agents, servants and employees, knew that a dangerous and defective condition existed upon said public property, in that said underground fuel oil storage tank had been abandoned for a period in excess of ten years, and that the same had not been removed, or filled solid with earth, sand, or concrete as required by Section 9--912 of the Municipal Code of the City of Fresno, and furthermore said defendant City of Fresno, its officers, agents, servants and employees, knew that to permit underground fuel oil storage tanks to remain in the ground for any length of time after said tanks had been abandoned, constituted a dangerous condition, capable of resulting in an explosion, and causing great physical and property damage in the event thereof. That the failure of the defendant City of Fresno, its officers, agents, servants or employees, to take action to prevent the existence of said dangerous condition, could result in injury to members of the public.'

A demurrer filed by defendants to the first, second and third causes of action was sustained, but the demurrer to the fourth cause of action was overruled by the court. An answer was filed by the City of Fresno and Floyd E. Watson in which, among other things, contributory...