Plaza v. City of San Mateo

• Decision Date: 08 February 1954
• Citation: 266 P.2d 523,123 Cal.App.2d 103
• Court: California Court of Appeals Court of Appeals
• Parties: PLAZA v. CITY OF SAN MATEO et al. Civ. 15672.

Page 523

266 P.2d 523

123 Cal.App.2d 103

PLAZA v. CITY OF SAN MATEO et al.

Civ. 15672.

District Court of Appeal, First District, Division 1, California.

Feb. 8, 1954.

Hearing Denied March 31, 1954.

Saul N. Ross, San Bruno, for appellant.

Clark & Heafey, Edwin A. Heafey, Schofield & Hannegan, Oakland, Gerald P. Martin, San Francisco, for respondents.

FINLEY, Justice.

This appeal is from a judgment entered in favor of respondents City of San Mateo and Matt Thiltgen after their demurrer to appellant's complaint was sustained without leave to amend.

It is alleged in the complaint that the City of San Mateo is a municipal corporation; that it operated the San Mateo Municipal Golf Course to which the public was invited; that at the time of appellant's injury defendant Tom Fry was employed by the City as a golf professional and respondent Matt Thiltgen as Recreational Director; that on May 24, 1952, after paying the required admission fee and completing a round of golf, appellant, while at or near her car in the parking lot provided by the City, was struck in the mouth and injured by a golf ball driven from the golf course by defendant Patsy Yeakey.

It is claimed by appellant that the City of San Mateo, Tom Fry and Matt Thiltgen are liable in damages because of their negligence in managing the golf course and in failing to provide proper protection and proper facilities for the protection of paying patrons. It is claimed in particular 'that they permitted a dangerous and defective condition to prevail in failing to provide a fence of sufficient height to protect persons using the parking area and clubhouse from golf balls driven by persons using the golf course proper.' (C.T. 6) It is further alleged that for a long time prior to appellant's injury the claimed dangerous and defective condition existed and was known to employees and officers of the City of San Mateo who possessed the authority to remedy the dangerous and defective condition but that they failed to do so. It is also alleged that appellant presented her claim against the City of San Mateo, Matt Thiltgen and Tom Fry, which claim was rejected.

The complaint is in two counts. In the first Patsy Yeakey is charged with engligence in driving the golf ball which struck appellant. She defaulted. The other defendants are all charged in the second cause of action. Tom Fry, the golf professional, filed his answer.

In sustaining the demurrer of the City of San Mateo and Matt Thiltgen without leave to amend the Court ruled in effect that no cause of action founded upon negligence or upon violation of the Public Liability Statutes could be stated against these defendants on account of injury sustained by a paying patron who had been struck by a golf ball driven by a third party. The question before us is not whether appellant's present complaint is demurrable, but whether in view of the facts alleged there could possibly be a cause of action stated against the demurring parties.

The powers of a municipal corporation are denominated, on the one hand, governmental, legislative or public; and on the other, proprietary or private. Chafor v. City of Long Beach, 174 Cal. 478, 163 P. 670, L.R.A.1917E, 685; Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 223 P.2d 639.

Whether appellant could state a cause of action outside the scope of the Public Liability Statutes against the City of San Mateo depends upon whether it is acting in its governmental capacity or in its proprietary capacity in operating a public golf course and in charging for the privilege of using its facilities. The significance of this is founded on the well-settled rule that, 'When operating a facility in a proprietary capacity, a city, as does a private operator, owes its invitees the duty of exercising ordinary care for their safety.' Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 341, 223 P.2d 639, 643; Sanders v. City of Long Beach, 54 Cal.App.2d 651, 129 P.2d 511.

'It is only where statutes give a right of action that an action can be maintained [against a municipality] to recover damages inflicted by a city in the exercise of its governmental functions.' Pittam v. City of Riverside, 128 Cal.App. 57 at page 61, 16 P.2d 768 at page 770; Kellar v. City of Los Angeles, 179 Cal. 605, 178 P. 505; Miller v. City of Palo Alto, 208 Cal. 74, 280 P. 108. In acting in its governmental capacity its liability is confined to those specific instances set forth in Section 53051 of the Government Code, and liability of officers and employees is governed by sections 1953-2002 of that Code. Accordingly, there would be liability only for a dangerous or defective condition of public property, and then only if those authorized to remedy the condition had knowledge or notice and failed within a reasonable time to take action to remedy it, or to take action reasonably necessary to protect the public against the condition. If all of the required elements are present, liability would attach, regardless of whether the use to which it is being put is governmental or proprietary in nature.

Respondents urge that the complaint does not and cannot state a cause of action against these defendants under Government Code Sections 1953 and 53051. One point urged is that it contains no allegation that the San Mateo Municipal Golf Course is public property owned by the City of San Mateo. It is admitted in respondents' brief, however (page 7) that 'Some time subsequent to the adoption and filing of its Charter with the Secretary of State, the City of San Mateo became the owner and operator of the San Mateo Municipal Golf Course.' Thus it is obvious that the complaint could have been amended to cure the defect complained of.

Respondents also urge that the only dangerous or defective condition relied upon by appellant to bring the cause of action under the Public Liability Acts is the height of the fence between the golf course proper and the parking lot. This is a specific allegation. It is, however, preceded by more general allegations, and in light of the decision in Bauman v. City & County of San Francisco, 42 Cal.App.2d 144, 108 P.2d 989, we cannot agree that the height of the fence is the only dangerous or defective condition complained of which could fall within the provisions of the Public Liability Acts.

In Bauman v. City & County of San Francisco, supra, 42 Cal.App.2d 144, 108 P.2d 989, action was brought under the Public Liability Act on behalf of a five year old child who was struck on the head by a baseball while playing in a sand box in an area set aside for small children on a public playground. The balance of the playground was in lawn and there was no fence or other protection between the area set aside for the small children and the balance of the playground. The baseball was batted by one of a group of boys playing ball on the portion outside the small children's area.

In discussion the Court used the following language, 42 Cal.App.2d at page 152, 108 P.2d at page 994: 'There can be no doubt that, under the terms of the Public Liability Act, the liability of the appellant if any, must be predicated upon a showing that the playground was dangerous or defective.' And further on at page 153 of 42 Cal.App.2d at page 994 of 108 P.2d: 'It has frequently been stated that no hard and fast rule can be laid down as to what constitutes a dangerous or defective condition, but that each case must depend upon its own state of facts. [Citing cases.] It is also well-settled that as a general rule it is a question of fact for the jury to determine whether a given set of facts or circumstances creates a dangerous or defective condition. [Citing cases.]'

And further on in the opinion at page 153 of 42 Cal.App.2d at page 994 of 108 P.2d: 'The jury was justified in finding that the playground was dangerous and defective for any of the following reasons: That the playground was rendered dangerous or defective by the negligence of appellant in permitting the playing of hard baseball in dangerous proximity to the sand box; that under the circumstances here existing it was the duty of appellant, if hard baseball was to be permitted to be played in the north end of the field, to erect some barrier for the protection of those plying in the small children's section; or the appellant negligently failed to properly supervise the playground by either failing to prevent the boys from playing hard baseball in dangerous proximity to the small children's section or in negligently failing to keep the small children away from the sand box while hard baseball was being played nearby. There can be no doubt that a dangerous or defective condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect.' Citing Huff v. Compton City Grammar School District, 92 Cal.App. 44, 267 P. 918.

In Fackrell v. City of San Diego, 26 Cal.2d 196, at page 204, 157 P.2d 625 at page 629, 158 A.L.R. 773, the Court in discussing the question of inherent danger in connection with the layout of a city street had this to say: 'If the improvement is designed to be used without inspection and maintenance and under varying conditions which are normally to be anticipated then it should be made reasonably safe for ordinary use under all of those conditions and if, under any one or more of them, it is, or naturally will become, unsafe for such use because of its planned design then it is inherently dangerous.' See, also, Moore v. Burton, 75 Cal.App. 395, 242 P. 902; Mulder v. City of Los Angeles, 110 Cal.App. 663, 294 P. 485; George v. City of Los Angeles, 11 Cal.2d 303, 79 P.2d 723; Sandstoe v. Atchison, T. & S. F. R. Co., 28 Cal.App.2d 215, 82 P.2d 216; Bigelow v. City of Ontario, 37 Cal.App.2d 198, 99 P.2d 298.

On the question of whether liability attaches under the Public Liability Act where the act of a third person is partially responsible for injury, such as the act here of Patsy Yeakey...