Sorensen v. Hutson

• Decision Date: 04 December 1959
• Parties: Donna Mae SORENSEN, a Minor, by her Guardian ad litem, Hazel Mae Sorensen, et al., Plaintiffs and Respondents, v. Claudia Hill HUTSON, Hugh Hutson, Jr., Robert Lee Hill, Mary Ellen Hill, individually and doing business as a Co-partnership, Hugh Scott Hilles, The Irvine Company, a Corporation, Defendants; Quinn Vaughan, Defendant and Appellant. Civ. 5948.
• Court: California Court of Appeals Court of Appeals

Page 785

346 P.2d 785

175 Cal.App.2d 817

Donna Mae SORENSEN, a Minor, by her Guardian ad litem, Hazel Mae Sorensen, et al., Plaintiffs and Respondents, v. Claudia Hill HUTSON, Hugh Hutson, Jr., Robert Lee Hill, Mary Ellen Hill, individually and doing business as a Co-partnership, Hugh Scott Hilles, The Irvine Company, a Corporation, Defendants;

Quinn Vaughan, Defendant and Appellant.

Civ. 5948.

District Court of Appeal, Fourth District, California.

Dec. 4, 1959.

Hearing Denied Jan. 27, 1960.

John R. Allport, Los Angeles, for appellant Quinn Vaughan.

Richard T. Drukker, Los Angeles, amicus curiae on behalf of appellants Claudia Hill Hutson, Hugh Hutson, Jr., Robert Lee Hill, Mary Ellen Hill, individually and doing business as Robert Hill's Chef's Inn, a co-partnership.

Betts, Ely & Loomis, Los Angeles, for respondents.

GRIFFIN, Presiding Justice.

Plaintiff and respondent Donna Mae Sorensen, a minor aged 17, by her guardian ad litem Hazel Mae Sorensen, brought this action against defendants Claudia Hill Hutson (operator of the Chris-Craft speed boat 'Hill-A-Rill'); Hugh Hutson, Jr., her husband; Robert Lee Hill, her father, Mary Ellen Hill, her mother; individually and doing business as Robert Hill's Chef's Inn, a co-partnership (hereinafter referred to as partners); Hugh Scott Hilles, operator of an outboard skiing craft; The Irvine Company, a corporation, owner of the land here involved; and defendant and appellant Quinn Vaughan, lessee; for damages for loss of respondent's left arm and other injuries alleged to have been the result of negligence of all defendants, arising out of a collision of these boats resulting in a verdict of the jury for the sum of $200,000 against defendants partners and appellant Quinn Vaughan, lessee, which judgment is not claimed to be excessive. The verdict relieved defendant Hugh Scott Hilles of any claim of negligence and a non-suit was granted as to defendant The Irvine Company.

Vaughan perfected an appeal from the judgment. The remaining defendants (partners) filed a notice of appeal. This appeal was not perfected. It appears from the record that their insurance carrier, through respective counsel, paid $102,546.86 (the amount of its liability) to plaintiff as partial satisfaction of said judgment and the court approved it on behalf of the minor. The order of approval included a proviso that the attorneys for plaintiff should, in their discretion, determine at what time and against which of the defendants execution should issue in the enforcement of the collection of the balance of the judgment.

A motion by respondent to dismiss the appeal by the partners for their failure to perfect it was here made. It was opposed by their present counsel who appeared and filed an amicus curiae brief arguing that these particular defendants (partners) now found themselves in a most hazardous position and strongly suggested that the judgment against appellant Vaughan be upheld or, if a reversal is necessary as to him, the court should order a reversal of the entire judgment. Citing such authority as Fortier Transportation Co. v. Union Packing Co., 96 Cal.App.2d 748, 216 P.2d 470. It was ordered that the ruling on the motion be determined in the decision on the merits. In accordance with Rule 10(a), Rules on Appeal, and in view of the conclusions hereinafter reached, the motion to dismiss their appeal should be granted. Wilkins v. Wilkins, 108 Cal.App.2d 12, 237 P.2d 684.

The principal question raised on this appeal by appellant Vaughan is the sufficiency of the evidence to support the verdict of negligence as to him. The factual background, tersely stated, is this: Defendant The Irvine Company owned a certain parcel of land (four or five acres) adjoining the easterly edge of the upper Newport Bay. It was about 1,100 feet in length and about 300 feet in width and surrounded on the east by a fence with a gate entrance. The property involved extended westerly in said bay to the mean high-tide line. The strip had been filled in by dredged sand. The Irvine Company leased this property to appellant Vaughan under certain specified conditions * * * for the launching and removal of privately owned boats into and from Newport Bay adjacent to said premises by means of the boat ramp now constructed on said premises; for the parking of automobiles of the patrons of said ramp and sale to patrons of food. Lessee agreed to occupy said premises for the uses and purposes therein designated and not otherwise and to conduct his operations in accordance with all public laws, ordinances and regulations applicable.

The concrete boat ramp (60 feet long by 20 feet wide and constructed about six to eight inches above the level of the sand) was located near the southerly portion of said strip and extended lengthwise westerly into the bay on the same gradient as the shore, which was estimated at seven to eight per cent. At extreme high tide the waters of the bay completely covered the ramp and at extreme low tide the waters receded to a distance about six feet west of the end of the ramp. There was evidence that the mean high tide line described in the lease as the westerly boundary of this leased strip was near the westerly end of the float.

Vaughan, the lessee, was employed by The Irvine Company during working days; he employed one Clyde Frankel as his general supervisor of the property. The place was open to the public from early in the morning until 9:00 p. m. A charge of $1 was made for customers parking their cars and for boat launching from the ramp, and 50 cents for parking a car and general use of the facilities offered, such as boating, picnicking, skiing to and from the shore and extra charges for use of barbecue equipment and store supplies.

General rules for patrons of said leased premises and activities in connection therewith were posted on a shack located on the property and constitute one of the principal issues here involved. They read in part:

'Upper Bay Ramp, Bayside Drive, 1 1/4 mile north of 101 Coast Highway. Suggestions for your safety.

'1. Traffic pattern.

'(a) Traffic shall move in a counter-clockwise direction at all times. Orange County Harbor Ordinance No. 490.

'(b) A motor boat in the process of towing should have the right of way.

'(c) Motor boats leaving and approaching the shore shall follow a counter-clockwise pattern.

'(d) A motor boat with a man over-board or a fallen skier or acquaplaner is permitted to turn around and pick up that person if he is clear and if the person is over his head in water.

* * *

* * *

'5. Swimming or wading is not advised in this area.

* * *

* * *

'9. There is no speed limit on motor boats operating north of the posted area.

'Upper Bay Ramp Management

'Approved: Russell Craig, Newport Harbor Master

Heinz Kaiser, Orange County Supervisor'

It was also shown that mimeographed copies of these rules were circulated throughout the district to hundreds of prospective customers, indicating that there was no speed limit on motor boats operating north of the posted area (agreed to be considerable distance south of this property) where the maximum speed limit was set at five miles per hour. On holidays and Sundays, this concession attracted many customers, estimated up to several hundred people, because of the limitation of speed in lower parts of the bay and other conveniences. On these days, Vaughan employed a special deputy sheriff to enforce the rules and to generally supervise the actions of invitees and others using these facilities. On Wednesday, September 8, 1954, the day of the accident, about noon, respondent and her party entered the premises after payment of the required fee, launched their 14-foot outboard motorboat and proceeded to ski, starting from the shore north of the ramp and generally enjoying the facilities, including wading on the shore by children of the party. There were other guests so occupying the property. About 5:00 p. m. appellant visited the property, saw that there were only two or three trailers and a small crowd still there, so he allowed Frankel, the manager, whose duty it was, as stated by appellant, to assist in the operation of the premises and to endeavor to prevent any improper or dangerous conduct affecting patrons and to caution boats coming too close to shore, to go home. A few minutes later, appellant did likewise and left the place unattended.

Defendants Hutson and others came to these premises about 6:00 p. m. in a 22-foot Chris-Craft inboard to ski. The remainder of their party came by cars, entered the gate, prepared to pay the customary charge but found no one in attendance so they entered and joined the Hutsons in skiing from the shore, north of and near the ramp. There families, children and others were wading and participating in a beach picnic nearby. It was common practice for skiers, both experienced and inexperienced, to take off from this beach and it was the usual custom for bathers to bathe toward the northern portion.

About 7:00 p. m. defendant Hilles and party decided to teach respondent how to ski. In the outboard they made two or three attempts to take her from a position about 10 feet in the water in a northerly direction with a 60-foot ski rope, without success. She, each time, fell near the shore. The outboard and occupants pulled in the line, turned to their left and returned toward the shore to make another start. On the third attempt the outboard was in the process of returning to the shore where respondent was standing adjusting her skis preparing for another take-off. Claudia Hutson, who had been operating the Chris-Craft in a counter-clockwise direction north and across the front of the leasehold property, pulling two experienced skiers on single skis, had just completed a third round and was coming northward again at about 25 to 30 miles per hour with the intention of allowing her skiers to ski to shore as she passed. In doing so, she collided with the...