Schwerdtfeger v. State

• Decision Date: 07 February 1957
• Citation: 148 Cal.App.2d 335,306 P.2d 960
• Court: California Court of Appeals Court of Appeals
• Parties: LeRoy SCHWERDTFEGER, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent. Civ. 16967.

Page 960

306 P.2d 960

148 Cal.App.2d 335

LeRoy SCHWERDTFEGER, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 16967.

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

Feb. 7, 1957.

Rehearing Denied March 8, 1957.

Hearing Denied April 2, 1957.

Jarvis, Miller & Decker, Martin J. Jarvis, Hugh B. Miller, Charles W. Decker, San Francisco, for appellant.

Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, Wilbur J. Russ, San Francisco, of counsel, for respondent.

PETERS, Presiding Justice.

Plaintiff, an employee of Marine Terminals Corporation, a company that has an agreement to occupy space on pier 39 in San Francisco, was seriously injured while working in the course and scope of his employment on the pier. The pier is owned by the State. Plaintiff brought this action against the State, claiming that it owed him a duty of due care which had been violated. The jury brought in a defense verdict. Plaintiff appeals. His two major contentions are that the state law imposes such control over the situs and instrumentality of the injury that the State owed him a duty to use reasonable care to inspect the instrumentality causing the injury, and the place where it occurred, or, independently of statute, under general principles, he was an invitee of the State to whom the State owed the duty of reasonable care to see to it that the premises were reasonably safe. The trial court refused to so instruct.

The case has been tried twice. The first trial resulted in a verdict for plaintiff, which was set aside on motion for a new trial. The second trial resulted in a defense verdict.

The State owns the land and pier in question. The 'possession and control' of the pier are vested in the Board of State Harbor Commissioners for San Francisco Harbor. Harb. & Nav.Code, §§ 1700, 1732.5, 1732.7, 1735, 1741, 1770, 1900, 1906, 1907, 3000, 3105, 3106. The State engages in certain activities on the piers under its control. The Harbor Board is authorized to 'fix and regulate the rates of dockage, wharfage, cranage, tolls, rents and other charges.' § 3080, Harb. & Nav.Code. It charges rent to the private businesses, such as Marine Terminals, that operate on its piers, §§ 3050-3064, Harb. & Nav.Code, and dockage, § 3081, Harb. & Nav.Code, and wharfage, §§ 3086-3087, Harb. & Nav.Code. The Board supervises the operation of these facilities and properties, § 1732.5, Harb. 3 Nav.Code, the construction, maintenance and repair of piers, and the erection of improvements necessary for the safe landing, loading and unloading of cargo and passengers passing into and out of San Francisco by water. § 3000, Harb. & Nav.Code. It also operates the State Belt Railroad, which has tracks on pier 39, and sells electricity to ships berthing at any of the many piers under its jurisdiction. The port of San Francisco is a competitor with other ports through which cargo and passengers pass. One of the declared statutory purposes of these provisions is to aid in harbor development and trade promotion in this area. (See, generally, §§ 1906, 1980, et seq., Harb. § Nav.Code.)

Under these and related provisions the Board has the power to license private businesses, such as Marine Terminals, to engage in certain activities on the piers under its jurisdiction. To this end the Board is authorized to make rules and regulations 'concerning the control and management' of the piers. § 1900, Harb. § Nav.Code. It may insure against loss or damage regarding its property or operations. § 1902, Harb. & Nav.Code. It fixes and collects all fees for the services and facilities provided by the State. It may impress a lien upon all goods stored upon its piers to secure the collection of its fees. § 3100, Harb. & Nav.Code. It may require the removal of any goods or structures which constitute obstructions on the wharves and piers. §§ 3101, 3106, 3107, Harb. & Nav.Code. Through its chief wharfinger and through wharfingers assigned to each pier, the Board regulates the movement of ships in the docks and harbor, guards against obstructions on the piers and presrves order and reports accidents. §§ 1735, 1738, Harb & Nav.Code. Through its chief engineer, the Board gives constant attention to the condition of the seawall, and to the thoroughfares, structures and wharves under its jurisdiction. §§ 1740, 1741, Harb. & Nav.Code. The Board cannot 'lease any premises under its control for any purpose,' but the Board 'may permit any property under its control to be used by any person.' § 3061, Harb. & Nav.Code. This section was derived from former Political Code section 2524 which referred to this power as one to 'set apart and assign' the property. Any such use permitted by the Board may be terminated upon 30 days' notice. § 3063, Harb. & Nav.Code. By one of its duly adopted rules the Board has the power to remove stevedores' tools and appliances from the wharves. Rule 154a. It is a conceded fact that a wharfinger employed by the State was present on pier 39 daily not less than twice, and, on the average, four or five times. His duties were principally to assess charges and to preserve the state property under the jurisdiction of the Board. He also investigated accidents, kept the piers free from obstructions, and generally supervised the piers.

Pier 39 has been rented to Marine Terminals by the State since 1945. Prior to that, Marine Terminals had operated the pier for the United States Army. Marine Terminals is both a terminal operator and a contracting stevedore. There are several provisions of the rental agreement to which reference should be made. Among other things, it provides:

'1. This assignment of space is a revocable license to use the same. The said license is revocable at the pleasure of the Board of State Harbor Commissioners for San Francisco Harbor. Payment of the above mentioned charges for space in advance is a condition precedent to the continuance of this license and the same may be revoked forthwith at any time when the payment of said charges is in default or when said premises are used in an unlawful manner, or for unlawful purposes. When the payment of said charges is not in default, said license may be revoked by either Assignor or Assignee at any time, said revocation, however, to be effective thirty (30) days after notice in writing thereof * * *.

'10. Assignee shall permit Assignor and his agents to enter into and upon said premises at all reasonable times, and, in the event of an emergency, at any other time for the purpose of inspecting the same or for the purpose of maintaining, altering or repairing said premises, or if the premises be part of a building, then to maintain, alter or repair said building including the erection and maintenance of such scaffolding, canopies, fences and props as may be required, or for the purpose of posting notices of non-liability for alterations, additions, or repairs, or for the purpose of placing upon the property in which the said premises are located any usual or ordinary signs, or for fire or police purposes or to protect the premises from any cause whatever, without any rebate of assignment charges and without any liability on the part of Assignor for any loss of occupation or quiet enjoyment of the premises thereby occasioned.

'11. Assignee shall, at his sole cost, keep said premises and appurtenances and every part thereof, including glazing, sidewalks adjacent to said premises, any store front and the interior of the premises, in good and sanitary order and condition, * * *

'12. Assignee hereby accepts liability for any and all damage to said premises and appurtenances and every part thereof caused by assignee or his employees, by licensees or invitees of assignee, which occurs during the period of this assignment and Assignee agrees to notify Assignor of said damage within thirty (30) days thereof, and Assignee specifically agrees to either repair said damage or to compensate Assignor for the reasonable value of said damage or to compensate Assignor for the cost of repair thereof, at the election of Assignor.

'13. Assignee, as a material part of the consideration to be rendered to Assignor, hereby waives all claims against Assignor for damages to goods, wares and merchandise, in, upon or about said premises and for injuries to persons in or about said premises, from any cause arising at any time, and Assignee will hold Assignor exempt and harmless from any damage or injury to any person, or to the goods, wares and merchandise of any person, arising from the use of the premises by Assignee, or from the failure of Assignee to keep the premises in good condition and repair, as herein provided.'

This assignment of space gave Marine Terminals physical possession of all of pier 39. The State did not reserve any portion of the premises, nor did it impose specific instructions on the use of the pier. Marine Terminals was permitted to solicit its own business and to operate its premises in accordance with its needs. The State does not engage in stevedore or rigging operations, nor does it solicit business for any particular pier or tenant.

Since 1945 Marine Terminals has been the only assignee operating on pier 39. It makes its own arrangements for the docking of ships and for the loading or unloading of cargo. It directed cargo placement and handling, and it routed over the pier any passengers from ships docking there. It maintained a 24-hour guard on the pier, and locked the gate leading to it at night. Neither the pier wharfinger nor any other state employee had a key to this gate. The general public was excluded from the pier. The Board licenses strappers, weighers and stencilers, who, however, perform no services for the State. They seek employment from the pier operators such as Marine Terminals. The Board operates the State Belt Railroad which is used by Marine Terminals in its operations. Tracks of this railroad are on pier 39. Cars are delivered...