Moncur v. City of Los Angeles

• Decision Date: 15 March 1977
• Citation: 68 Cal.App.3d 118,137 Cal.Rptr. 239
• Court: California Court of Appeals Court of Appeals
• Parties: Norma MONCUR et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, DEPARTMENT OF AIRPORTS, et al., Defendants and Respondents. Rhett Patrick SHAUGHNESSY and Jan Shaughnessy, Plaintiffs and Appellants, v. CITY OF LOS ANGELES and City of Los Angeles Department of Airports, Defendants and Respondents. Civs. 48667, 49316.

Page 239

137 Cal.Rptr. 239

68 Cal.App.3d 118

Norma MONCUR et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, DEPARTMENT OF AIRPORTS, et al., Defendants and Respondents.

Rhett Patrick SHAUGHNESSY and Jan Shaughnessy, Plaintiffs and Appellants, v. CITY OF LOS ANGELES and City of Los Angeles Department of Airports, Defendants and Respondents.

Civs. 48667, 49316.

Court of Appeal, Second District, Division 2, California.

March 15, 1977.

As Modified March 29, 1977.

Rehearing Denied April 6, 1977.

As Modified April 11, 1977.

Hearing Denied May 12, 1977.

Ben F. Goldman, Jr., John J. Baer and Kenneth G. Petrulis, Los Angeles, for appellants Moncur, and others.

Gabler, Domke & Berglund by William D. Rehwald, Los Angeles, for appellants Shaughnessy, and others.

Kirtland & Packard, Alexander B. T. Cobb, Robert E. Moore, Jr., Los Angeles, for respondents.

COMPTON, Associate Justice.

On August 6, 1974, a bomb exploded at the Pan American Airlines Terminal at the Los Angeles International Airport. Several persons were killed and injured. Robert Moncur was one of those persons killed and Rhett Patrick Shaughnessy was one of the injured. The heirs of Robert Moncur in case No. SW C 31766, and Shaughnessy and his wife in case No. C 120257 all instituted actions against the City of Los Angeles and the members of the Airport Commission (hereafter the City). The trial court in each case sustained without leave to amend a demurrer to the third amended complaint and entered judgments of dismissal. The plaintiffs noticed appeals. We have consolidated the appeals.

Both Moncur and Shaughnessy at the time of the explosion were in the common area of the Pan American Terminal waiting to board a flight. The bomb had been placed in a coin operated locker which was located in an area near the Pan American facility, an area which was completely accessible to the public.

The complaint in the two actions contained allegations of various forms of tort liability, all predicated on the failure of the City, in the operation of the airport, to take safety precautions in restricting access to the rental lockers. Both complaints charged the City with knowledge of the prevailing climate of violent activity by extremists and the fact that airplanes and airport facilities are favorite targets of these extremists. ¹

Nevertheless the issue presented is a narrow one. Accepting the factual allegations of the complaint as true as we are bound to do in assessing the sustaining of a demurrer (Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952; McHugh v. Howard, 165 Cal.App.2d 169, 331 P.2d 674) our attention is focused on the element of duty and causation. In the latter regard we are not bound to accept plaintiff's conclusionary, ineffectual or improperly pleaded allegations. (3 Witkin, Cal.Procedure (2d ed.) Pleading, p. 2413; Griffin v. County of Colusa, 44 Cal.App.2d 915, 113 P.2d 270; Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732.)

Central to the complaint in both cases is the theme that public lockers afford a convenient place of concealment for anyone disposed to plant an explosive device in the airport terminal; that their location in this case in an area of easy accessibility constituted a dangerous condition of the airport property--a condition which could have been eliminated, as the City well knew, by relocating the existing search and surveillance system which is used to screen persons boarding airplanes.

An essential element of tort liability is the existence of a legal duty owed to the plaintiff which duty has been breached by the defendant either intentionally or negligently. (4 Witkin, Summary of California Law (8th ed.) Torts, § 5, p. 2306.) The legal duty in the case of government tort liability is governed by statutory provisions which provide for immunity for certain governmental acts necessary to operation of government. (Gov.Code, § 815; Susman v. City of Los Angeles, 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240.)

Government Code section 845 provides:

'Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.' ²

To the extent that plaintiff's complaints may be construed as alleging a failure to provide sufficient police protection in the form of patrols or police surveillance of the common areas of the terminal, they fail to state a cause of action. (Susman v. City of Los Angeles, supra; Antique Arts Corp. v. City of Torrance, 39 Cal.App.3d 588, 114 Cal.Rptr. 332; Hartzler v. City of San Jose, 46 Cal.App.3d 6, 120 Cal.Rptr. 5; also see Gov.Code, § 818.2.)

In an effort to escape the immunity provisions of Government Code section 845, plaintiffs maintain that the complaints in no way allege that the City had failed to provide adequate police protection but rather that the complaints specifically addressed themselves to maintenance of a dangerous condition on public property.

A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition, or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition. (Gov.Code, § 835; Sykes v. County of Marin, 43 Cal.App.3d 158, 117 Cal.Rptr. 466; Vedder v. County of Imperial, 36 Cal.App.3d 654, 659, 111 Cal.Rptr. 728.)

Section 830 of the Government Code states: "Dangerous condition' means a condition of property that creates a substantial . . . risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.' Case law has interpreted that section to apply to the physical condition of the property itself. (Sykes v. County of Marin, supra; Campbell v. City of Santa Monica, 51 Cal.App.2d 626, 125 P.2d 561; Shipley v. City of Arroyo Grande, 92 Cal.App.2d 748, 208 P.2d 51; Bryant v. County of Monterey, 125 Cal.App.2d 470, 270 P.2d 897.)

Liability for injury caused by dangerous condition of property has also been imposed when an unreasonable risk of harm is created by a combination of defect of property and acts of third parties. (Baldwin v. State of California, 6 Cal.3d 424, 90 Cal.Rptr. 145, 491 P.2d 1121; Quelvog v. City of Long Beach, 6 Cal.App.3d 584, 591, 86 Cal.Rptr. 127.) However, the courts have consistently refused to characterize harmful conduct on the part of a third party as a dangerous condition in the absence of some concurrent contributing defect in the property itself. (Hayes v. State of California, 11 Cal.3d 469, 472, 113 Cal.Rptr. 599, 521 P.2d 855, citing Jones v. Czapkay, 182 Cal.App.2d 192, 6 Cal.Rptr. 182.)

Plaintiffs urge on us the recent holding in Slapin v. Los Angeles Airport, Cal.App., 135 Cal.Rptr. 296, filed December 29, 1976, in support of their position.

In Slapin plaintiff was assaulted and injured at night in a parking lot at the International Airport. Plaintiff's action against the City was based on the theory that inadequate lighting was a dangerous condition which created a substantial risk of the occurrence of such criminal conduct.

This court in overruling a judgment of dismissal entered after the trial court had sustained a demurrer without leave to amend held that plaintiff had stated a cause of action and could prevail at trial upon proof that the lighting of the parking lot was a concurrent proximate cause of the injury.

The Slapin court reiterated the proposition that the City could not be held liable for failure to police the parking lot and the opinion expressed considerable doubt that plaintiff could ever prove that the lighting was a 'cause' of the injury. Be that as it may Slapin as distinguished from the case at bench, did involve an alleged defect in the condition of the property, to wit, the lights.

In the instant case the airport building was not itself a dangerous or defective piece of public property. The danger was created by the act of placing the bomb on the property. The bomb was unrelated to the physical condition of the terminal and could not in any sense constitute a defect in something of which it was not a constituent part.

The physical condition of the...