Rhodes v. City of Palo Alto, 14309

• Decision Date: 09 November 1950
• Docket Number: No. 14309,14309
• Citation: 100 Cal.App.2d 336,223 P.2d 639
• Court: California Court of Appeals Court of Appeals
• Parties: RHODES v. CITY OF PALO ALTO.

Page 639

223 P.2d 639

100 Cal.App.2d 336

RHODES v. CITY OF PALO ALTO.

No. 14309.

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

Nov. 9, 1950.

Arnold Rumwell, City Attorney, Palo Alto, for appellant.

John G. Sobieski, Los Angeles, for respondent.

FRED B. WOOD, Justice.

Defendant appeals from a judgment awarding plaintiff damages for personal injuries sustained at a parking lot owned and operated by defendant.

About 8 p. m. on the evening of December 3, 1946, respondent went to the Community Center in Palo Alto to attend the reading of a play in the Community Theater. She parked her car in a parking lot at the Community Center and while walking toward the theater stepped into a chuckhole and suffered the injuries of which she complains. There was a pole on which there were lights used to illuminate the parking area, but the lights were not turned on.

The Community Center is situate in a public park and includes, in addition to the Community Theater, a junior museum, swimming pools a soft-ball park, junior playground, tennis courts, scout headquarters, administration offices of the city recreation department, a power generating plant, a fire house, a grammar school, and a parking lot, all owned by appellant. The park, the recreation facilities, the parking lot, and the Community Theater are operated by appellant through its recreation department. Persons using any of these facilities may use the parking lot.

Concerning the use of the theater and the parking lot in connection with it, the complaint alleged and the answer admitted that 'the defendant owned, maintained, and operated, at the so called Community Center, adjoining Middlefield Road, in the City of Palo Alto, a Municipal Auditorium and a parking lot adjacent thereto for the use of persons attending the meetings in said Municipal Auditorium; that the defendant invited the public to attend the meetings held in the Municipal Auditorium and invited the persons attending such meetings to use said parking lot for parking their automobiles and for an approach to said Municipal Auditorium; that said parking lot had paved surface.'

The court found these allegations true and that respondent, as an invitee of appellant, used the parking lot for the purpose of attending a public meeting in the auditorium; that appellant in maintaining and operating the parking lot was acting in a proprietary rather than a governmental capacity; that appellant therefore owed to respondent as an invitee a duty to exercise reasonable care to keep the premises in question reasonably safe; that the parking lot was in an unsafe, dangerous and defective condition; that appellant failed to exercise reasonable care to keep the parking lot in reasonable safe condition and therefore was negligent; and that appellant's negligence was the direct and proximate cause of respondent's injuries.

Appellant assigns as error the court's conclusion of law that the operation of the parking lot is a proprietary function, claiming (1) that the Community Theater and parking lot are governmental functions because they promote the public health, and (2) that operation of the parking lot is governmental, even if the Community Theater were proprietary.

We see no essential difference between the operation of this theater and that of the municipal auditorium which was held a proprietary activity in Chafor v. City of Long Beach, 174 Cal. 478, 163 P. 670, and in Sanders v. City of Long Beach, 54 Cal.App.2d 651, 129 P.2d 511.

The Long Beach auditorium was essentially a hall for public assemblages and gatherings, was not used for any of the governmental functions of the city. It was constructed and operated under statutory authority for municipal maintenance of a public assembly or convention hall. In the Chafor case, the right of use and occupancy had been given to the Sons of St. George for the celebration of 'Empire Day'. The auditorium was open to the general public after the Sons of St. George, with the paraders including the mayor and the municipal and, had been admitted. In the Sanders case, it was being used by the city to advertise the city and give instruction to residents and visitors concerning the various departments of the municipality, including the exhibition of motion pictures descriptive of departmental activities, and the general public was invited to attend.

The test for determining whether a particular municipal activity is governmental or proprietary is furnished by the decision in the Chafor case, in these words: 'The powers of a municipal corporation are denominated 'governmental, legislative or publicf the other, proprietary or private. * * * On distinction of these powers rests the doctrine of the common-law liability of municipal corporations. In its governmental or public character the corporation is made, by the state, one of its instruments, or the local depository of certain limited and prescribed politcal powers, to be exercised for the public good on behalf of the state rather than for itself. * * * But in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for private advantage of the compact community, which is incorporated as a distinct legal personality, or corporate individual; and as to such powers and to property acquired thereunder, and contract made with reference thereto, the corporation is to be regarded quoad hoc as a private corporation, or at least not public in the sense that the power of the Legislature over it or the rights represented by it is omnipotent.'' 174 Cal. at pages 483-484, 163 P. at page 672. '[T]he governmental powers of a city are those pertaining to the making and enforcing of police regulations, to prevent crime, to preserve the public health, to prevent fires, the caring for the poor, and the education of the young. And in the performance of these functions all buildings and instrumentalities connected therewith come under the application of the principle.' 174 Cal. at page 487, 163 P. at page 674.

Appellant contends that the Palo Alto Community Theater is a recreational facility maintained, as is a public park, for the preservation of the public health; hence, a governmental activity. In support of this view, appellant directs attention to the fact that the Palo Alto theater was donated by a philanthropist who in making the donation expressed the desire that it advance the interests of adult recreation activities; that the theater is located in a public park with a number of recreational facilities and performs the same general functions as the park; and that the theater is administered by the city recreation department. In contrast, urges appellant, the Long Beach auditorium was built under authority of statute for use as a public assembly or convention hall; was located on a beach near a municipal pier; and was administered by the board of public works which is usually charge with the operation of utilities and other proprietary ventures.

These do not impress us as distinguishing characteristics. No matter where located nor by what agency administered, the building retains its essential quality as a public meeting place. It is no different in that respect from the Long Beach auditorium, of which the court in the Chafor case said: 'True, it was maintained for the benefit of the municipality in the sense that it afforded the populace a meeting place for many forms of amusement and instruction. But in all these respects it differed no whit from any other auditorium or assembly hall built and maintained by private capital for the same purposes.' 174 Cal. at page 489, 163 P. at page 674.

It appears, too, that the contention that a municipal auditorium, like a park, is an instrument...