Low v. City of Sacramento

• Decision Date: 20 May 1970
• Citation: 7 Cal.App.3d 826,87 Cal.Rptr. 173
• Court: California Court of Appeals Court of Appeals
• Parties: Zelda J. LOW, Plaintiff and Respondent, v. CITY OF SACRAMENTO, a municipal corporation, and the County of Sacramento, a municipal corporation, Defendants and Appellants. Civ. 12325.

Page 173

87 Cal.Rptr. 173

7 Cal.App.3d 826

Zelda J. LOW, Plaintiff and Respondent, v. CITY OF SACRAMENTO, a municipal corporation, and the County of Sacramento, a municipal corporation, Defendants and Appellants.

Civ. 12325.

Court of Appeal, Third District, California.

May 20, 1970.

Friedman & Collard, by Morton Friedman, Sacramento, for plaintiff-respondent.

Fitzwilliam, Memering, Stumbos & De Mers, by Theodore Bolling, Sacramento, for defendant-appellant City of Sacramento.

Hardy, Erich & Brown, by Cavan Hardy, Sacramento, for defendant-appellant Sacramento County.

FRIEDMAN, Acting Presiding Justice.

Plaintiff sustained personal injuries when she fell into a water-filled depression in a parking strip outside the Sacramento Medical Center, a hospital owned and operated by the County of Sacramento. She brought suit against the county and against the City of Sacramento as well. The trial court ruled as a matter of law that the parking strip was owned by the city and controlled by the county. It instructed the jury to that effect. A verdict and judgment were entered against both defendants. Each appeals. The city seeks affirmance of the judgment, the county reversal.

Government Code section 835 establishes the conditions under which a public entity is liable for the dangerous condition of its property. Government Code, section 830, subdivision (c), declares: "Property of a public entity' and 'public property' mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.'

The trial court premised its declaration of concurrent responsibility upon the view that the city Owned the parking strip as owner of the street easement within which the strip was located; while the county, as owner of the abutting hospital property, Controlled it. On appeal the city supports the trial court's ruling. The county rejects it, urging that it neither owned nor controlled the parking strip.

The hospital property fronts on the east side of Stockton Boulevard in Sacramento. When the county acquired the property in 1869, it was situated in the unincorporated area. At that time the street in front of the property was a county road. The 1869 deed conveyed fee title to the county out to the center of the road. In 1911 the neighborhood was annexed to the City of Sacramento, and Stockton Boulevard became a city street. The city installed pavement, curbs and sidewalks in 1922. Stockton Boulevard became part of the state highway system in 1933 but in 1939 reverted to its former status as a city street.

The street occupies an 80-foot right of way, measured from the easterly edge of the sidewalk bordering the hospital grounds to the westerly edge of the opposite sidewalk. In this area the right of way is occupied, first, by a six-foot paved side walk; next a six-foot parking strip or planting strip; then a rolled, as distinguished from vertical, curb; finally, the central portion reserved for automobile traffic.

Grass was planted on the parking strip. Until 1962 or 1963, county workers mowed and watered the strip, removed debris and filled any holes which developed. A problem arose. Drivers parking on Stockton Boulevard to visit the hospital would drive their automobiles over the rolled curb, permitting their wheels to rest on the parking strip. The strip became unsightly. Mowing the lawn became a difficult problem. The county asked the city to prohibit parking along the hospital frontage, but the city declined. The county suggested the possibility of paving the parking strip but without success. The county then reduced its maintenance activities, ceasing to water the law. As the grass died and bare dirt appeared, ruts and holes developed. Automobiles continued to roll over the curb onto the strip, creating more indentations. Each spring the county's ground crew filled in the holes but took no such action during the rainy winter weather. The county work crew continued to mow what grass was left in the strip and kept it clear of debris.

According to undisputed evidence, Sacramento property owners, not the municipality, maintain parking strips in front of their individual parcels.

On a February evening plaintiff parked her automobile in front of the hospital, intending to visit her husband, a patient in the hospital. She stepped from her car into a two-inch deep rut or hole filled with water, slipped to the ground and suffered injuries.

The appeal turns on the phrase 'owned or controlled' in subdivision (c) of section 830. The phrase has not received judicial interpretation since its enactment as part of the California Tort Claims Act of 1963. (See, however, Hoover v. City of Fresno (1969) 272 A.C.A. 7, 77 Cal.Rptr. 146; Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 67 Cal.Rptr. 197.) It is deceptively simple. It reveals ambiguity when ownership is separated from control; when the aggregation of powers called ownership is divided and when various kinds of control are held in separate hands. Subdivision (c) explicitly forecloses liability where the public entity has given up an easement which it does not own or control. Even at that point, the entity, as holder of the servient estate, may retain enough control, that is, such kinds of control, as to share liability with the owner of the dominant estate. (See, e.g., Holmes v. City of Oakland, supra; cf. Whalen v. Ruiz (1953) 40 Cal.2d 294, 253 P.2d 457.)

Government tort liability in California is entirely statutory. (Gov.Code, § 815, subd. (a); California Government Tort Liability (Cont.Ed.Bar (1964) p. 124.) Documentary aids to the interpretation of the California Tort Claims Act of 1963 are available, namely, the Recommendation Relating to Sovereign Immunity issued by the California Law Revision Commission and the Legislative Committee Comments accompanying the 1963 legislation. (Cont.Ed.Bar, Op. cit., pp. 120--123.) The documentary material accompanying Government Code section 830 does not discuss the phrase 'owned or controlled' but deals only with the express exclusion of noncontrolled easements over public property. (See comment of Law Revision Commission following § 830 in annotated codes; Cont.Ed.Bar, Op. cit., pp. 545--548.) The exclusive sway of statutory rules does not foreclose the aid of common law tort doctrines and analogies in ascertaining and achieving imperfectly expressed statutory objectives. (See Sanders v. County of Yuba (1967) 247 Cal.App.2d 748, 751, 55 Cal.Rptr. 852.) The appropriateness of that aid is emphasized by the provision of the Tort Claims Act declaring the public entity's entitlement to any defense available to a private defendant. (Gov.Code, § 815, subd. (b).)

In common law parlance, the possessor of land is party bearing responsibility for its safe condition. Possession, in turn, is equated with occupancy plus control. (Green v. Menveg Properties, Inc. (1954) 126 Cal.App.2d 1, 9, 271 P.2d 544; Rest.2d Torts, § 328E.) Thus, in identifying the party vulnerable to a verdict, control dominates over title. 'The crucial element is control.' (Schwartz v. Helms Bakery Ltd. (1967) 67 Cal.2d 232, 239, 60 Cal.Rptr. 510, 430 P.2d 68.)

Interpretive aid may be drawn from the landlord and tenant cases, which are frequently characterized by division of ownership and control. Generally, the tenant rather than the landlord controls the leased portion of the premises and is liable to third persons injured by their dangerous condition. (Schwerdtfeger v. State of California (1957) 148 Cal.App.2d 335, 345, 306 P.2d 960; Pfingst v. Mayer (1949) 93 Cal.App.2d 265, 272--273, 208 P.2d 1002; Prosser on Torts (3d ed.) (1964) p. 412.) The landlord is liable for the condition of areas over which he retains control, such as common passageways. (Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 399, 170 P.2d 5; Prosser, Op. cit., p. 418.) A tenant may be liable for an area outside the strict limits of his own tenancy if he assumes control over it. (Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d at p. 401, 170 P.2d 5.) In appropriate circumstances the possessor of control and a third party who created or contributed to the dangerous condition may be concurrently liable. (See, e.g., Yee Chuck v. Board of Trustees (1960) 179 Cal.App.2d 405, 411, 3 Cal.Rptr. 825; Schwerdtfeger v. State of California, supra, 148 Cal.App.2d at p. 345, 306 P.2d 960.)

Cases decided under the superseded Public Liability Act of 1923 provide interpretive aid. (Hibbs v. Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 171, 60 Cal.Rptr. 364.) In express terms, that act imposed liability upon the governmental entity having authority to remedy the dangerous condition. (Former Gov.Code, § 53051, added by Stats.1949, ch. 81, and repealed in 1963; Gillespie v. City of Los Angeles (1950) 36 Cal.2d 553, 556, 225 P.2d 522.) Although authority to remedy the dangerous condition is no longer an express statutory standard, the courts have continued to resort to it. Where control, rather than power to correct the defective condition, is the verbal signal of liability, the courts have continued to equate the two concepts. (Avey v. County of Santa Clara (1968) 257 Cal.App.2d 708, 712, 65 Cal.Rptr. 181; Larson v. Santa Clara Valley Water Conservation Dist. (1963) 218 Cal.App.2d 515, 523--524, 32 Cal.Rptr. 875; Schwerdtfeger v. State of California, supra, 148 Cal.App.2d at p. 345, 306 P.2d 960.) Thus, in identifying the defendant with whom control resides, location of the power to correct the dangerous condition is an aid.

The county relies heavily upon sidewalk accident decisions. The general rule views the sidewalk as part of the street; it absolves the abutting owner and holds the city liable for pedestrian injuries caused by the dangerous condition of the sidewalk. ¹ The...