Strzelczyk v. Marki
| Decision Date | 20 April 1959 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Marie STRZELCZYK and Alfons Strzelczyk, Plaintiffs and Appellants, v. Gustav MARKI and Martha Marki, Defendants and Respondents. Civ. 17957. |
Edward L. Cragen, San Francisco, for appellants.
Ropers & Majeski, Redwood City, for respondents.
Plaintiffs appeal from a judgment on an order sustaining demurrer to second amended complaint without leave to amend.
Question Presented.
Does section 340, subdivision 3, Code of Civil Procedure (), apply? This in turn primarily depends upon whether the rule of a continuing nuisance involving damage to land applies to personal injuries. Record.
The complaint alleges that from June 15, 1951, to July 31, 1955, plaintiffs rented from defendants a four room furnished apartment under a month to month tenancy. Defendants agreed to assume the obligations of ordinary upkeep, maintenance and care of the premises, and appliances therein, including the plumbing, all of which was warranted to be in good working condition and not injurious to health or life. During the tenancy, defendants operated, maintained, permitted and supervised an open sump-type sewer directly subjacent to the bedroom of the apartment, in a dangerous, defective and unlawful condition. Said sewer was open and received discharges of human waste from a toilet in another apartment. The discharges into the sewer emitted noxious and toxic gases and fumes which plaintiff Marie inhaled 'during the said period of time, or for a long time during the said tenancy, in sufficient quantities to cause her to be sick, ill and become injured * * *.' The exact date of the installation of the sewer is unknown to plaintiffs. In 1953, defendants installed a gas stove and oven in the kitchen of plaintiffs' apartment. It was so carelessly, negligently and unlawfully maintained, repaired and connected that it caused certain noxious and toxic gases and fumes to escape which were inhaled by plaintiff Marie after its installation to and including the 31st day of July, 1955, causing her to be sick, ill and injured. There follows detail of plaintiff Marie's illness alleged to have been caused as above. Plaintiffs allege general damages in the sum of $75,000 and special damages of $1,834.64. A general demurrer and one stating that the alleged cause of action is barred by section 340, subdivision 3, Code of Civil Procedure, was sustained without leave to amend.
Statutes of Limitation.
Plaintiffs, citing Civil Code, § 3479 and Health and Safety Code, §§ 15024 and 17821, contend they have alleged both a common law nuisance and a nuisance per se. They then contend that they have alleged a continuing nuisance, citing Phillips v. City of Pasadena, 27 Cal.2d 104, 162 P.2d 625, and Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833, to the effect that a nuisance which presumably will continue indefinitely is considered a permanent one, and the limitations period runs from the time the nuisance is created, but a nuisance which may be discontinued at any time is considered a continuing one, and that every repetition of a continuing nuisance is a separate wrong for which the person injured may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred. Those...
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Howe v. Pioneer Mfg. Co.
...the statutory period (Lai Wum Chin Mock v. Belfast Beverages, 193 Cal.App.2d 770, 772--773, 14 Cal.Rptr. 602; Strzelczyk v. Marki, 169 Cal.App.2d 703, 337 P.2d 846; Rubino v. Utah Canning Co., 123 Cal.App.2d 18, 266 P.2d 163.') (225 Cal.App.2d at pp. 588--589, 37 Cal.Rptr. at p. 470. See, i......
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Nestle v. City of Santa Monica
...to be considered a separate wrong for property damage purposes but not for personal injuries. To the extent Strzelczyk v. Marki (1959) 169 Cal.App.2d 703, 337 P.2d 846, adopts a contrary position, it is disapproved. Accordingly, if the statute of limitations becomes an issue, the trial cour......
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Warrington v. Charles Pfizer & Co.
...failure to discover some or most of the resulting damage until later will not toll the running of the statute. (Strzelczyk v. Marki, Supra, 169 Cal.App.2d 703, 705, 337 P.2d 846; Sonbergh v. MacQuarrie, Supra, 112 Cal.App.2d 771, 773--774, 247 P.2d 133; and see Collins v. County of Los Ange......
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Mack v. Hugh W. Comstock Associates, Inc.
...the statutory period (Lai Wum Chin Mock v. Belfast Beverages, 193 Cal.App.2d 770, 772-773, 14 Cal.Rptr. 602; Strzelczyk v. Marki, 169 Cal.App.2d 703, 337 P.2d 846; Rubino v. Utah Canning Co., 123 Cal.App.2d 18, 266 P.2d 163). As noted above, damages for the alleged personal injuries are not......