Perry v. City of Santa Monica

• Decision Date: 25 January 1955
• Citation: 279 P.2d 92,130 Cal.App.2d 370
• Court: California Court of Appeals Court of Appeals
• Parties: Martha PERRY and Mary Perry, Plaintiffs and Appellants, v. CITY OF SANTA MONICA, Joann Cesario, Mrs. Molina S. Delane, Firemen's Fund Insurance Company, a corporation, Doe I to Doe X, inclusive, and Roe I to Roe X, Inclusive, Defendants. City of Santa Monica, Respondent. Civ. 20376.

Page 92

279 P.2d 92

130 Cal.App.2d 370

Martha PERRY and Mary Perry, Plaintiffs and Appellants, v. CITY OF SANTA MONICA, Joann Cesario, Mrs. Molina S. Delane, Firemen's Fund Insurance Company, a corporation, Doe I to Doe X, inclusive, and Roe I to Roe X, Inclusive, Defendants City of Santa Monica, Respondent.

Civ. 20376.

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

Jan. 25, 1955.

Hearing Denied March 25, 1955.

Stanley Fleishman, Los Angeles, for appellants.

Robert G. Cockins, Mark C. Allen, Jr., and Robert D. Ogle, Santa Monica, for respondent.

VALLEE, Justice.

Appeal by plaintiffs from a judgment in favor of defendant city of Santa Monica entered on the sustaining of a demurrer to the first amended complaint, referred to as the complaint, without leave to amend.

The complaint alleges:

On April 1, 1953, at 7:40 a. m., plaintiffs were passengers in an automobile driven by Aleck Penny who was traveling north on Euclid Avenue near Michigan Avenue in Santa Monica. At the same time, Joann Cesario negligently drove an automobile west on Michigan Avenue and collided with the automobile being driven by Penny. As a proximate result of such negligence plaintiffs were injured.

At the time of the accident the intersection of Euclid and Michigan Avenues was in a dangerous and defective condition. It was so laid out, constructed, and maintained that a 'vehicle' traveling northerly on Euclid could not see traffic approaching from the west on Michigan without first entering the intersection and placing 'itself' in a hazardous position and a 'vehicle' traveling westerly on Michigan could not see traffic approaching in a northerly direction on Euclid without first entering the intersection. It was a heavily traveled blind intersection and it did not have traffic signals, stop signs, semaphores, or other traffic control devices. Defendant city had knowledge, by way of petition of its citizens and otherwise, of the dangerous and defective condition of the intersection. Notwithstanding such knowledge, the city carelessly, negligently, and unlawfully refused and failed to place or maintain any appropriate stop or warning signs at the intersection. On or about the day of the accident, but subsequent thereto, the city placed stop signs at the intersection. The city waited an unreasonable length of time after having notice of the dangerous and defective condition of the intersection before installing the stop signs.

On information and belief plaintiffs allege that prior to April 1, 1953, the city had decided it was reasonably necessary to place stop signs at the intersection, and it waited an unreasonable length of time after so deciding before it actually installed the signs. Also on information and belief plaintiffs allege that preceding the accident there were many other accidents at the intersection caused by its dangerous condition. This was well known to the city and its governing board.

Under the Public Liability Act of 1923 (now Government Code, §§ 53050, 53051):

'A local agency a 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.'

The injuries must result from the dangerous or defective condition of public property. What is included in the term 'property' was exhaustively considered by this court in Bady v. Detwiler, 127 Cal.App.2d 321, 273 P.2d 941. In all of the cases cited relative to the question, the property was in existence at the time of the accident or had been in existence, and liability was incurred by the local agency because either the property was in a dangerous or defective condition or it was not maintained or replaced after it once had been in existence.

The governmental immunity which a city enjoys as a state agency can be taken away only be legislative enactment. Whiting v. City of National City, 9 Cal.2d 163, 165, 69 P.2d 990; Van Dorn v. City & County of S. F., 103 Cal.App.2d 714, 716, 230 P.2d 393; 19 Cal.Jur. 126, § 461. The Public Liability Act was not enacted for the purpose of protecting those who come upon city streets, but only those who sustain injuries by reason of a 'dangerous or defective' condition. Shipley v. City of Arroyo Grande, 92 Cal.App.2d 748, 750, 208 P.2d 51, 52. It has been repeatedly held that a city is not an insurer of the safety of travelers; it is required only to exercise ordinary care to maintain its streets in a reasonably safe condition for those using them. George v. City of Los Angeles, 11 Cal.2d 303, 308, 79 P.2d 723.

There is no allegation that irregularities, defects, or obstructions existed in the streets themselves. In Belcher v. City and County of S. F., 69 Cal.App.2d 457 158 P.2d 996, it was held that the plaintiff had failed to state a cause of action against the city for personal injuries when she was blown over by a strong wind as she was descending steps cut by the city into the sidewalk, since she did not allege that there was anything dangerous or defective in the construction or design on the steps themselves or that there were any irregularities or defects such as holes, ridges, or upraises upon which a pedestrian might trip or by which one might be entrapped but merely alleged that the city was negligent in failing to provide a handrail and in not posting a warning sign.

Stang v. City of Mill Valley, 38 Cal.2d 486, 240 P.2d 980, was an action against the city for damages sustained as a result of a fire on the plaintiffs' property. The water lines leading to the fire hydrant adjacent to the plaintiffs' property and the fire hydrant had become clogged and were incapable of providing sufficient water for effective fire control. The court observed, 38 Cal.2d at page 489, 240 P.2d at page 982:

'The ordinary case coming within the terms of this act involves a situation where the injured person is using some type of city property that is dangerous or defective, and which he had a legal right to use, such as public streets [citation], highways [citation], buildings [citation], bridges [citation], school grounds (citation), or other similar property [citation]. Likewise ...