Torkelson v. City of Redlands

• Decision Date: 21 December 1961
• Citation: 17 Cal.Rptr. 899,198 Cal.App.2d 354
• Court: California Court of Appeals Court of Appeals
• Parties: Howard TORKELSON and Fern Mildred Torkelson, Plaintiffs and Appellants, v. CITY OF REDLANDS, California, a municipal corporation, Defendant and Respondent. Civ. 6258.

Page 899

17 Cal.Rptr. 899

198 Cal.App.2d 354

Howard TORKELSON and Fern Mildred Torkelson, Plaintiffs and Appellants, v. CITY OF REDLANDS, California, a municipal corporation, Defendant and Respondent.

Civ. 6258.

District Court of Appeal, Fourth District, California.

Dec. 21, 1961.

Martin & Camusi, William Camusi and W. Floyd Cobb, Los Angeles, for appellants.

Thompson & Colegate and Robert D. Allen, Riverside, for respondent.

COUGHLIN, Justice.

The plaintiffs, appellants herein, brought this action against the City of Redlands, respondent herein, to recover damages under the Public Liability Act (Gov.Code, sec. 53051) for the death of their ten year old daughter who had drowned in a storm drain constructed and maintained by the city; claimed that the storm drain constituted a dangerous condition of which the city had knowledge and failed to correct; and appealed from the judgment entered against them following an order granting the defendant's motion for a directed verdict in its favor.

Under the time-honored rule, if there is any substantial evidence which would support a verdict in favor of the plaintiffs the order of the trial court granting the motion for a directed verdict was in error, and the judgment must be reversed. (Reynolds v. Willson, 51 Cal.2d 94, 99, 331 P.2d 48; Aguirre v. City of Los Angeles, 46 Cal.2d 841, 844, 299 P.2d 862; Gallipo v. City of Long Beach, 146 Cal.App.2d 520, 526, 304 P.2d 106.)

Over a period of many years the City of Redlands constructed and maintained storm drains to carry away surplus irrigation and flood waters. One of these drains abutted the rear of the property where Linda Torkelson and her parents lived; was approximately 7000 feet in length; extended through a residential area; was made of cobblestones; at the point where it adjoined the Torkelson property was an open ditch; but was covered as it traversed several city streets; about four blocks down stream converged into an underground tunnel for a distance of 1000 feet; then came into the open but again converged into an underground tunnel for a distance of 378 feet; and eventually discharged into a ravine. The open ditch section of the drain was not fenced, except where adjoining property owners had erected such. No fence had been built on the property occupied by the Torkelsons. At this point the ditch was 3 1/2 feet in depth; approximately 6 feet in width at the top; and narrower at the bottom. Where the ditch went under the street next before converging into the first underground tunnel, i. e., Olive Street, it was 43 inches in height. The opening into the tunnel, which is 168 feet from the Olive Street underpass, narrows to 40 inches in height and 47 inches in width. There was no screen or grating across either the Olive Street underpass or the subsequent underground tunnels.

From the evidence presented, the jury could have concluded that for 25 years children had played in the ditch in question. At one time small boys had ignited a fire in the Olive Street underpass and the city fire department was called. The mayor, who formerly had been a councilman of the City of Redlands, testified that he had seen his six year old child playing in a drainage ditch similar to the one in question; that such a ditch 'is attractive for a child to play in'; that he believed 'it is a dangerous playground'; and that he told his child he 'did not want her playing down in the storm ditch any longer.'

On the afternoon of July 11, 1957, Linda Torkelson was playing in the ditch adjoining her back yard; it started to rain; a storm of cloudburst proportions ensued; and within a matter of minutes the ditch was filled to within a foot of the top of the Olive Street underpass. The City of Redlands never had experienced any storm similar in nature or extent to the one in question. Linda was swept downstream by the water; was seen struggling as she went into the Olive Street underpass; subsequently, somewhere in the storm drain, was drowned; and her body was recovered from the ravine into which its waters discharged.

The plaintiffs contend that the construction and maintenance of the storm drain without fences, which would prevent access thereto by a child, and without gratings at the intake entrance to the Olive Street underpass and the intake openings of the subsequent underground tunnels, which would prevent a person from being drawn down into the water, resulted in a condition which was danagerous, particularly to children who were accustomed to playing therein; that the city had knowledge of this danger and the presence of children in the drain; that, after acquiring such knowledge, no action was taken to remedy the condition or protect the general public against it; that their case presented substantial evidence to establish all of the essential elements of a cause of action under the Public Liability Act ¹ upon which they base their claim; and that the trial court erred in granting the defendant's motion for a directed verdict.

The defendant contends that the drain was not dangerous for the purpose for which it had been constructed; that its use as a playground by children cannot be made a basis for liability; and that the trial court properly granted its motion.

When the property of a public agency is in that condition which involves an unreasonable risk of injury to the general public, it is in a dangerous condition within the meaning of the Public Liability Act. (Hawk v. City of Newport Beach, 46 Cal.2d 213, 217, 293 P.2d 48; Gallipo v. City of Long Beach, supra, 146 Cal.App.2d 520, 527, 304 P.2d 106; cf. Acosta v. County of Los Angeles, 56 A.C. 198, 14 Cal.Rptr. 433, 363 P.2d 473; Gallipo v. City of Long Beach, 164 Cal.App.2d 70, 76, 330 P.2d 91; Castro v. Sutter Creek Union High School Dist., 25 Cal.App.2d 372, 377, 77 P.2d 509.) Whether such a condition exists ordinarily is a question of fact for the jury to decide (Ziegler v. Santa Cruz City High School Dist., 168 Cal.App.2d 277, 281, 335 P.2d 709; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 153, 108 P.2d 989), and 'each case must be determined upon its own peculiar facts.' (Hawk v. City of Newport Beach, supra, 46 Cal.2d 213, 217, 293 P.2d 48, 50.)

One of the factors pertinent to a determination of the question whether the condition of public property is dangerous to the general public, is the use to which that property is put. The respondent has cited a number of cases which indicate that liability is limited to injuries sustained in the ordinary, usual and customary use of the public property in which the alleged dangerous condition exists, i. e., Betts v. City & County of San Francisco, 108 Cal.App.2d 701, 703-704, 239 P.2d 456; Demmer v. City of Eureka, 78 Cal.App.2d 708, 713, 178 P.2d 472; Howard v. City of Fresno, 22 Cal.App.2d 41, 45, 70 P.2d 502; Woodman v. Hemet Union High School Dist., 136 Cal.App. 544, 553, 29 P.2d 257; and Beeson v. City of Los Angeles, 115 Cal.App. 122, 132, 300 P. 993; see also Loewen v. City of Burbank, 124 Cal.App.2d 551, 553, 269 P.2d 121; Gentekos v. City & County of San Francisco, 163 Cal.App.2d 691, 696, 329 P.2d 943. The opinions in some of these cases contain language referring to the use of such property 'for the purpose intended' (Gentekos v. City & County of San Francisco, supra, 163 Cal.App.2d 691, 696, 329 P.2d 943, 948), its 'intended lawful use' (Howard v. City of Fresno, supra, 22 Cal.App.2d 41, 45, 70 P.2d 502, 503), and its use for purposes inconsistent with those for which it was intended. (Beeson v. City of Los Angeles, supra, 115 Cal.App. 122, 132, 300 P. 993.) Respondent relies upon these statements and contends, in substance, that the ordinary, usual and customary use of property is that use for which it was designed or originally intended; claims that Linda was using the ditch as a playground; that this was not its designed or intended use; that her death resulted from a use inconsistent with that for which the ditch was designed or intended; and, for this reason, the city is not liable therefor. This concept is a limitation upon the scope of the stated rule not justified either by reason or precedent. In many cases the liability of a public agency for injuries caused by the dangerous condition of its property has been affirmed even though such injury arose out of a use thereof other than that for which it was designed or originally intended. (Acosta v. County of Los Angeles, supra, 56 A.C. 198, 14 Cal.Rptr. 433, 363 P.2d 473; Hawk v. City of Newport Beach, supra, 46 Cal.2d 213, 293 P.2d 48; Gibson v. County of Mendocino, 16 Cal.2d 80; Gallipo v. City of Long Beach, supra, 164 Cal.App.2d 70, 330 P.2d 91; Gallipo v. City of Long Beach, supra, 146 Cal.App.2d 520, 304 P.2d 106; Castro v. Sutter Creek Union High School Dist., supra, 25 Cal.App.2d 372, 377, 77 P.2d 509; Huff v. Compton City Grammar School Dist., 92 Cal.App. 44, 47, 267 P. 918.) An ordinary, usual and customary use, for the purpose at hand, includes that which reasonably should be anticipated, even though without the bounds of the designed or originally intended use (Acosta v. County of Los Angeles, supra, 56 A.C. 198, 200, 14 Cal.Rptr. 433, 363 P.2d 473; Castro v. Sutter Creek Union High School Dist., supra, 25 Cal.App.2d 372, 377, 77 P.2d 509; cf. Howard v. City of Fresno, supra, 22 Cal.App.2d 41, 45, 70 P.2d 502), and any established actual use which, being known to and acquiesced in by the public agency owner, has converted or enlarged the designed or originally intended use. (Hawk v. City of Newport Beach, supra, 46 Cal.2d 213, 216-217, 293 P.2d 48; Ziegler v. Santa Cruz City High School Dist., supra, 168 Cal.App.2d 277, 281, 335 P.2d 709; Gallipo v. City of Long Beach, supra, 164 Cal.App.2d 70, 75, 330 P.2d 91; Gallipo v. City of Long Beach, supra, 146 Cal.App.2d 520, 528, 304 P.2d 106; cf. Bauman v. City and County of San Francisco, supra, 42 Cal.App.2d 144, 153, 108 P.2d 989.) It should be noted that the...