Teilhet v. Santa Clara County

• Decision Date: 20 March 1957
• Citation: Teilhet v. Santa Clara County, 308 P.2d 356, 149 Cal.App.2d 305 (Cal. App. 1957)
• Court: California Court of Appeals
• Parties: Marta J. TEILHET, Plaintiff and Respondent, v. The COUNTY OF SANTA CLARA, a political subdivision of the State of California, Defendant and Appellant. Civ. 16948.

Page 356

308 P.2d 356

149 Cal.App.2d 305

Marta J. TEILHET, Plaintiff and Respondent, v. The COUNTY OF SANTA CLARA, a political subdivision of the State of California, Defendant and Appellant.

Civ. 16948.

District Court of Appeal, First District, Division 2, California.

March 20, 1957.

O. Vincent Bruno, San Jose, for appellant.

Boccardo, Blum, Lull, Niland & Teerlink, San Jose, for respondents.

DOOLING, Acting Presiding Justice.

This is an appeal from a judgment entered pursuant to a jury verdict in favor of plaintiff. Defendant County of Santa Clara states in its notice of appeal that it is also appealing from orders denying a motion for judgment notwithstanding the verdict, denying a motion for new trial, and denying a motion of non-suit. Although the latter two orders are non-appealable they can be reviewed on the appeal from the judgment.

Respondent sought in this action to recover for personal injuries and damage to her automobile incurred as a result of an automobile collision on Junipero Serra Boulevard, a highway of appellant County. It is respondent's theory that the cause of this collision was the dangerous or defective condition of appellant's highway at the time of the accident.

On July 24, 1952, appellant County was engaged in burning weeds along its right of way adjacent to its highway where the accident occurred. At about 2:30 p. m. on that day respondent, driving in a northerly direction in her Morris-Minor converible car, approached the area where the burning operation was being conducted. She had about two hours previous to this time passed this same area while burning operations were in progress. Respondent stopped her car behind a black car which had stopped a few feet south of a concentration of smoke that was across the road. At this point there was a fire to her right and in front of her along the right of way. Respondent testified that a wisp of smoke was coming across her car at this time. The black car moved on through the smoke and respondent then proceeded in first gear up the highway. She had traveled about one or two car lengths through the smoke when she collided with another car coming from the opposite direction. At this time she was not driving over ten miles an hour. She did not see this car before the impact, but testified that immediately before the impact she could see about a car length ahead of her.

Liability is sought to be imposed upon appellant County under the terms of section 53051 of the Government Code. That section provides:

'A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition:

'(a) Had knowledge or notice of the defective or dangeroud condition.

'(b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.'

Appellant first argues that there was no showing of a dangerous or defective condition of public property in this case. In making this condition it asserts that the dangerous or defective condition contemplated by the statute must be a tangible defect and that smoke in the atmosphere over a public highway cannot constitute such a condition.

Appellant bases its argument in this respect on a distinction between 'condition negligence' which appellant concedes properly falls within Government Code, section 53051 and 'activity or conduct negligence' which it asserts can under no circumstances fall under that section. There are several cases in our reports which demonstrate that under the broad language of the section: 'dangerous or defective condition of public property,' the condition of the public property may be rendered 'dangerous' within the meaning of the section by 'the use or general plan of operation of government operated property, as well as by a structural defect.' Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 153, 108 P.2d 989, 995; Harper v. Vallejo Housing Authority, 104 Cal.App.2d 621, 624-625, 232 P.2d 262; Plaza v. City of San Mateo, 123 Cal.App.2d 103, 108, 266 P.2d 523. Specifically the carrying on of burning operations on public property according to an established procedure has been held sufficient to render the property 'dangerous' within the meaning of the section in Huff v. Compton City Grammar School Dist., 92 Cal.App. 44, 47, 267 P. 918; Pittam v. City of Riverside, 128 Cal.App. 57, 65, 16 P.2d 768; Osborn v. City of Whittier, 103 Cal.App.2d 609, 230 P.2d 132.

Here the evidence shows that the procedure adopted by the County in annually burning the weeds and grass along the border of this highway had been established and uniform for a great many years. It was known from past experience that with the prevailing winds at that time of year smoke had from time to time been blown across the highway in such quantity as to completely obscure the view of drivers of automobiles using the highway. To argue that such a recurring condition could not render the highway 'dangerous' to those drivers using it at the time is to ignore the plain implication of the cases above cited. In Bauman v. City and County of San Francisco, supra, a small child playing in a sand box in a public playground maintained by the defendant was injured by a ball batted by larger children playing baseball in the immediately adjoining area. The practice of older children of playing baseball in this area had continued for a considerable period of time. The court said 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 * * * to erect some barrier for the protection of those playing 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.'

Every alternative suggested by the court in this quoted passage except the absence of a barrier is 'activity or conduct negligence' and not 'condition negligence' as appellant uses those terms in his brief. The reasonably foreseeable occasional batting or throwing of a ball over or into the sand box, as a result of the known activity of hard baseball being played in its vicinity, was the basic fact which rendered the condition of the sand box 'dangerous' in the Bauman case. The reasonably forseeable intermittent obscuring of the vision of motorists using the highway by smoke from the burning grass and weeds was the basic fact which rendered the highway dangerous in the case before us. On principle we cannot distinguish the one from the other, nor from the other cases above cited in all of which a customary activity in the use of the property was held sufficient to render the property 'dangerous.'

Appellant persists in the argument that it has been erroneously held liable under the doctrine of respondent superior, for some momentary negligence of its employees. This is not the basis of its liability, but rather as we have shown, a dangerous condition of the highway created by its customary and usual method of burning weeds along its edges.

Cases from other jurisdictions, and notably Warren v. State, 219 App.Div. 124, 219 N.Y.S. 530, relied upon by appellant, dealt with statutes containing narrower...