Wexler v. City of Los Angeles
| Decision Date | 06 May 1952 |
| Citation | 110 Cal.App.2d 740,243 P.2d 868 |
| Court | California Court of Appeals Court of Appeals |
| Parties | WEXLER v. CITY OF LOS ANGELES. Civ. 18682. |
Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., and Victor P. Spero, Deputy City Atty., all of Los Angeles, for appellant.
Gilligan & Pratt, Los Angeles, for respondent.
The instant action for wrongful death of plaintiff's minor son was brought pursuant to the Public Liability Act, sections 53050 and 53051, Government Code.
The complaint alleged that on March 6, 1949, defendant city owned and maintained a public beach and playground in the Venice area; that for nine months prior to that date, due to defendant's negligence a dangerous and defective condition had existed thereon; that defendant had notice of such defective condition as early as September 29, 1948, but failed to act to remedy it or to protect the public against it. It was further alleged that on said March 6, 1949, plaintiff's minor son while playing on said public beach was drowned in an open pool of water which had been allowed to collect and remain at the end of a storm drain on said public beach and playground. There followed allegations of the presentment to and rejection by defendant of plaintiff's claim for damages.
The amended answer denied generally and specifically the allegations of the complaint and set up the affirmative defenses of (1) contributory negligence of the minor; (2) concurring negligence of plaintiff; (3) unavoidable accident; (4) defect in parties plaintiff, the natural father being a necessary party under sections 376 and 377 of Code of Civil Procedure.
From a judgment awarding plaintiff $10,000 damages, defendant city appeals.
Evidence was presented to the effect that defendant in preparing a building site for the Hyperion sewage plant, removed therefrom several million cubic yards of sand which was placed along the shore line of the Pacific Ocean from El Segundo to Santa Monica. This was done under a master plan of shore line development in order to widen the beach oceanward and develop a modern playground.
One of the storm drains in the Venice area had its outlet on the shore line at the end of Thornton Avenue. After the widening operation this outlet was three hundred feet from the mean high tide line. The plan was to extend this outlet when the final width of the beach was determined and the location of the new shore line definitely located. In the meantime, the water from the storm drain ran in an open ditch to the ocean across the public beach. Very often the action of the surf and waves caused sand to block the outlet of the storm drain, resulting in an accumulation of water in a pool on the beach.
Plaintiff and her three and a half year old son lived in a dwelling about a block from the public beach and two blocks north of Thornton Avenue. Early in the morning of March 6, 1949, the little boy went out to play in his yard, which was completely fenced and the gate locked. During the morning, Robert Cummings, aged 5 1/2 years, together with Billy and Susan Black, aged 4 and 3 1/2 years, respectively, all living in the neighborhood, went across the street to play with Jay Wexler, plaintiff's son. Robert unlocked the gate and they all went through into the Wexler yard. After playing there a little while, they took Jay with them and went over to the Black's yard. After a short time, they all went down to the beach where they played in the dry sand. They then went over near the storm drain and took off their shoes. Robert had a carton and they took water out of the drain and made castles. As they played, Robert told Jay not to go in the water. Robert did not see Jay when he went in the water, but Billy Black told him 'Jay is in the water'. When Robert turned around the water was up to Jay's chest and 'He kept on sinking. * * * and before I knew it he was under.'
Myron Cox, Chief Lifeguard for the City of Los Angeles, who recovered the body of the drowned child, testified that he entered the shallow end of the pool of water from dry sand on the shoreside; that the water was very muddy, and he first contacted the body with his foot; that it came up freely from the water; that he picked up the child in water that was waist deep, i. e., three and a half feet; that the bottom of the pool was
There was evidence that the deceased child was sheltered and well cared for; was kept in an enclosed yard where he played with his tricycle; that he was not allowed to run around and had never been down to the beach by himself; that the lock on the gate was a sliding bar type which the child was unable to open.
On the question of notice to defendant, Mr. A. G. Johnson, beach designing engineer for the city, testified that on September 29, 1948, he 'recommended to the Board of Public Works that the Director of the Bureau of Sanitation be instructed to excavate a trench across the new fill at each (storm drain) oulet and to maintain these trenches until the storm drains can be extended.' He further testified that the trenches were opened from 'time to time'. However, there was evidence that the trenches or ditches were almost never opened, the witness Caron testifying that he was on the beach frequently around the time of the accident, and never saw the Thornton Avenue ditch open; that there was always sand at the end of the pool which kept the water from running out into the ocean. Likewise, the witness Diebold testified that he wrote letters to the Mayor, the City Council, the City Engineer and to the Board of Public Works as early as October 4, 1948, and complained about the blocked storm drains, but that 'absolutely nothing' was done until after the death of plaintiff's son.
The trial court found that 'for the last nine months immediately prior to March 6, 1949, due to the carelessness and negligence of the City of Los Angeles, there was a dangerous and defective condition existing on the beach and playground at Venice, near the Thornton Avenue Storm drain, and that the defendant * * * had notice of the dangerous and defective condition as early as September 29, 1948, and continuously thereafter up to and including March 6, 1949, the date of the death of plaintiff's minor son; the Court further finds that notwithstanding the notice which the defendant had of the dangerous and defective condition, the defendant failed and refused to take any action to remedy the dangerous and defective condition, or to protect the public against said dangerous and defective condition. * * *
'The Court finds further that due to the carelessness and negligence of the defendant * * * and due to the dangerous and defective condition of the public beach at Venice, the said minor child * * * was drowned in an open pool of water which was allowed to collect and remain at the end of the storm drain on the public beach and playground.'
The Court also found that the deceased minor child 'did not know or realize the danger of wading in or falling into the open pool of water complained of * * * that Jay Marlin Wexler...
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