Osborn v. City of Whittier

• Citation: 103 Cal.App.2d 609,230 P.2d 132
• Parties: OSBORN v. CITY OF WHITTIER. Civ. 17959.
• Decision Date: 19 April 1951
• Court: California Court of Appeals Court of Appeals

Page 132

230 P.2d 132

103 Cal.App.2d 609

OSBORN v. CITY OF WHITTIER.

Civ. 17959.

District Court of Appeal, Second District, Division 3, California.

April 19, 1951.

Rehearing Denied May 15, 1951.

Hearing Denied June 14, 1951.

Clay & Staples, Herbert G. Staples and C. F. Zimmerman, all of Los Angeles, for appellant.

Jennings & Belcher, R. P. Jennings, Stevens Fargo, Los Angeles, Thomas W. Bewley, City Atty., Whittier, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment of dismissal entered pursuant to an order sustaining a demurrer of defendant city of Whittier to the complaint without leave to amend in an action for damages for injury to property.

The complaint alleged these facts:

The city of Whittier maintained, managed, and operated a rubbish disposal dump within the city near Savage Canyon for its use, convenience, and benefit, and that of its residents.

Plaintiff was the owner of property on Turnbull Canyon Road in Puente which was improved with bearing avocado trees, a sprinkler system, fences, and tree props. On June 22, 1949, there was fruit on the trees.

Defendant, over a period of years and particularly on June 21 and 22, 1949, when a high wind was blowing, maintained the rubbish disposal dump in a dangerous condition, permitting the continued burning of rubbish therein, under all weather conditions, without supervision. The dangerous condition was known to defendant for a long period of time prior to June 21 and 22, 1949. Defendant neglected to take any measures to remedy the condition. (The specific allegations are set forth in the margin. ¹ )

On June 22, 1949, a fire started in the rubbish disposal dump and spread through and over surrounding property to plaintiff's property, burned and destroyed 248 avocado trees, full grown and bearing, and the crops thereon, damaged the sprinkler system and fence posts, and destroyed 750 tree props, to her damage in the sum of $21,130.97. The fire loss and damage was a proximate result 'of the negligent failure and neglect to remedy the dangerous and defective condition' of the rubbish disposal dump.

On September 16, 1949, plaintiff filed with the clerk and city council of defendant a written claim for damages. A copy of the claim is made a part of the complaint.

The question for decision is whether the complaint states facts sufficient to constitute a cause of action against the city of Whittier. The controlling statutes in effect on June 22, 1949--the Public Liability Act of 1923 and The Claims Act of 1931--in pertinent part read: 'Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.' Stats.1923, ch. 328, § 2, p. 675. ² 'Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building, park, grounds, works or property, a verified claim for damages shall be presented in writing and filed with the clerk or secretary of the legislative body of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.' Stats.1931, ch. 1167, § 1, p. 2475. The 1923 and 1931 statutes are now embodied in sections 53050-53056 of the Government Code.

Defendant states that plaintiff's property was located several miles from the dump. We are unable to ascertain the distance from examination of maps. For the purpose of this opinion only, we will assume that defendant's statement is correct.

Defendant argues that the maintenance in a dangerous condition, of a rubbish disposal dump, where rubbish is burned, cannot give a right of action to a property owner whose property, several miles away from the dump, is damaged by a fire from the dump which ignited grass and brush and spread to plaintiff's property; that what is meant by 'dangerous or defective condition' is that it 'is dangerous to persons who might be expected to come in contact with the defective or dangerous condition or to property which might reasonably be expected to be injured thereby'; that there must be a close relation between the dangerous condition and the property damaged.

The Public Liability Act of 1923 imposed on a municipality liability for injury or damage resulting from a dangerous condition of property. If the officers or employees of the municipality had actual or imputed knowledge or notice of the dangerous condition and neglected to remedy it within a reasonable time after knowledge or notice, or neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as might be reasonably necessary to protect the public against such dangerous condition, liability ensued. Fackrell v. City of San Diego, 26 Cal.2d 196, 157 P.2d 625, 158 A.L.R. 773; Gibson v. County of Mendocino 16 Cal.2d 80, 105 P.2d 105; Arellano v. City of Burbank, 13 Cal.2d 248, 89 P.2d 113; George v. City of Los Angeles, 11 Cal.2d 303, 79 P.2d 723; George v. City of Los Angeles, 51 Cal.App.2d 311, 124 P.2d 872; Allen v. City of Los Angeles, 43 Cal.App.2d 65, 110 P.2d 75; Bauman v. San Francisco, 42 Cal.App.2d 144, 108 P.2d 989; Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal.App.2d 215, 82 P.2d 216.

In George v. City of Los Angeles, 11 Cal.2d 303, 308, 79 P.2d 723, it was held that if a municipality creates a dangerous condition of its property, it is liable for any injuries to persons or property resulting from such condition provided it had knowledge thereof and neglected to remedy said condition within a reasonable time after acquiring such knowledge; that this liability is based upon negligence; and that the question of the negligence of the municipality is for the determination of the jury. See also Brooks v. City of Monterey, 106 Cal.App. 649, 654, 290 P. 540; Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal.App.2d 215, 218, 82 P.2d 216.

If the dangerous condition is the proximate cause of the injury or damage, liability ensues. Bosqui v. San Bernardino, 2 Cal.2d 747, 760, 761, 43 P.2d 547; Lorraine v. City of Los Angeles, 55 Cal.App.2d 27, 30, 130 P.2d 140. 'Proximate cause' means that the injury or damage was the natural and probable consequence of the wrongful or negligent act or omission and the ability on the part of a person of ordinary intelligence reasonably to have foreseen or anticipated the harmful consequence of his act or omission. Chutuk v. Southern Counties Gas Co., 21 Cal.2d 372, 380, 132 P.2d 193; Weck v. L. A. County Flood Control Dist., 80 Cal.App.2d 182, 189, 181 P.2d 935; Johnson v. Union Furniture Co., 31 Cal.App.2d 234, 238, 87 P.2d 917.

The precise consequence of a wrongful act or omission need not have been foreseeable. The question is not whether defendant did foresee, or by the exercise of ordinary care should have foreseen, the identical consequence that happened, in order that its act or omission be a proximate cause of the injury or damage. The question is whether it was reasonably foreseeable that injury or damage would likely occur. Defendant's duty is measured by the standard of foreseeability of injury or damage to the eyes of a reasonably prudent person having regard for the accompanying circumstances. Werkman v. Howard Zink Corp., 97 Cal.App.2d 418, 425, 218 P.2d 43. Whether the dangerous condition was a proximate cause of the damage is a question of fact. Barker v. City of Los Angeles, 57 Cal.App.2d 742, 748, 135 P.2d 573; Allen v. City of Los Angeles, 43 Cal.App.2d 65, 67, 110 P.2d 75; Bauman v. San Francisco, 42 Cal.App.2d 144, 154, 108 P.2d 989.

Though an act or omission be removed from the injury and damage by intermediate causes or effects, yet if, in a natural and continuous sequence, unbroken by any superseding cause, it produces that injury or damage, and if without it the injury would not have happened, it is a proximate cause of such injury or damage. Proximity in point of time or space is no part of the definition. That is of no importance except as it may afford evidence for or against proximity of causation. Hyer v. Inter-Insurance Exchange, etc., 77 Cal.App. 343, 347, 246 P. 1055. Whether defendant should have foreseen that a fire from the dump might spread to adjoining property and thence to property more distant, is a question of fact. Adams v. Southern Pacific Co., 4 Cal.2d 731, 738, 53 P.2d 121; Bauman v. San Francisco, 42 Cal.App.2d 144, 154, 108 P.2d 989; Butcher v. Vaca Valley & C. L. R. R. Co., 67 Cal. 518, 521, 8 P. 174; Henry v. Southern P. R. R. Co., 50 Cal. 176, 183; Paiva v. California Door Co., 75 Cal.App. 323, 331, 242 P. 887. The allegation that the damage was a direct and proximate result of the dangerous condition of the dump is a sufficient allegation of proximate cause. Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 103, 114 P.2d 1.

In collecting garbage, trash and other refuse, hauling it to its dumping ground and disposing of it by fire, defendant was exercising a governmental function which was not completed until the ashes were disposed of....