Winston v. Hansell

• Decision Date: 19 May 1958
• Citation: 160 Cal.App.2d 570,88 A.L.R.2d 326,325 P.2d 569
• Parties: , 88 A.L.R.2d 326 Flossie WINSTON, Plaintiff and Appellant, v. Rose HANSELL, Defendant and Respondent. Civ. 17707.
• Court: California Court of Appeals Court of Appeals

Page 569

325 P.2d 569

160 Cal.App.2d 570, 88 A.L.R.2d 326

Flossie WINSTON, Plaintiff and Appellant, v. Rose HANSELL, Defendant and Respondent.

Civ. 17707.

District Court of Appeal, First District, Division 1, California.

May 19, 1958.

George P. Finnegan, San Francisco, for appellant.

W. Martin Tellegen, Hall, Henry, Oliver & McReavy, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff, Flossie Winston, in a second amended complaint, attempted to state a cause of action against the city of San Francisco and against Rose Hansell for damages for personal injuries sustained by her when she fell on the public sidewalk in front of the Hansell property. The complaint purports to state two causes of action, the first against the city, and the second apparently against Rose Hansell ¹ as the owner of the abutting property. The cause of action against the city is not involved on this appeal. Rose Hansell demurred generally to the second cause of action. The court sustained the demurrer without leave to amend, and entered its judgment of dismissal in favor of Rose Hansell. Flossie Winston appeals.

The second amended complaint as to respondent avers that respondent owns and occupies the property adjoining the sidewalk where she fell; that 'at all times herein mentioned there was and now is a sidewalk in front of said premises for the general public to walk upon, and that defendants * * * did make special use of said sidewalk in that said sidewalk was used as a driveway for automobiles'; that on June 9, 1956, 'as a direct and proximate result of the carelessness and negligence of said defendants, and as a direct and proximate result of said special use of said sidewalk, it was maintained and kept in a dangerous and defective state of disrepair in that said sidewalk was worn, broken, cracked and uneven; that defendants had notice and knowledge of said defective condition of said sidewalk for a long period of time prior to said 9th day of June, 1956, but that defendants, and each of them, failed, refused and neglected to repair the same at any time prior thereto.'

There are certain fundamental principles of law that are decisive of this appeal.

In the absence of statute it is the general rule that there is no common law duty, resting on the owner or occupant of land abutting on a public sidewalk, owed to the public to keep the sidewalk in a safe condition. Sexton v. Brooks, 39 Cal.2d 153, 245 P.2d 496; Martinovich v. Wooley, 128 Cal. 141, 60 P. 760; Schaefer v. Lenahan, 63 Cal.App.2d 324, 146 P.2d 929; Barton v. Capitol Market, 57 Cal.App.2d 516, 134 P.2d 847.

There are many cases applying this general rule. A few examples will serve to illustrate their general trend. In Martinovich v. Wooley, 128 Cal. 141, 60 P. 760, the plaintiff stepped on a rotten plank which was part of the sidewalk in front of defendants' property. The plank gave way and plaintiff was injured. The complaint alleged that the defective condition of the plank was caused by the negligence of the defendants. A demurrer was sustained and judgment entered for the defendant. This judgment was affirmed. The Supreme Court stated the applicable rule as follows (128 Cal. at page 143, 60 P. at page 760):

'A sidewalk is a part of the highway. [Citations.] At common law, no duty was cast upon the owner of the abutting property to maintain the street in good repair. If such duty exists in this state, it must be by virtue of some statutory enactment. Since culpable negligence cannot exist except from failure to perform a duty imposed by law or by contract, if the duty to repair the sidewalk in this instance was not cast upon defendants they were not responsible for its condition, and the general demurrer was properly sustained.'

In Sexton v. Brooks, 39 Cal.2d 153, 245 P.2d 496, the plaintiff recovered a judgment for injuries when she fell in front of defendant's building. The fall was caused by a constructional defect in the sidewalk. The jury was instructed that as an invitor the defendant owed to invitees the duty 'to make all portions of premises over which he has control safe' whether they be inside or outside the building, and that the jury should determine whether defendant should have warned invitees of the dangers inherent in the sidewalk. The instruction was held to be erroneous, and the judgment was reversed. The Supreme Court stated the general rule and the exceptions to it in the following language (39 Cal.2d at page 157, 245 P.2d at page 497):

'It is the general rule that in the absence of statute a landowner is under no duty to maintain in a safe condition a public street abutting upon his property. [Citations.] There is, however, an exception to this rule, and plaintiff claims that the evidence brings this case within that exception. It has been held that an abutting owner is liable for the condition of portions of the public sidewalk which he has altered or constructed for the benefit of his property and which serve a use a independent of and apart from the ordinary and accustomed use for which sidewalks are designed. * * *

'A landowner may also be liable under some circumstances where the public sidewalk has been constructed or altered by the city in a particular manner for the special benefit of his property. For example, if an inherently dangerous condition is created on a public sidewalk abutting an entrance to a building, and this is done at the request of the owner and for his special benefit in order to serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed, the landowner may be under a duty to warn invitees of the hazard. If, however, the work is done by the city without regard to whether it benefit the adjoining property, and if the incidental benefit which results could not have been refused by the person who owned the property at that time, neither he nor his successor should be held liable for a dangerous condition caused by the construction.'

In Schaefer v. Lenahan, 63 Cal.App.2d 324, 146 P.2d 929, a demurrer without leave to amend was sustained as to Lenahan and the resulting judgment affirmed. There the plaintiff fell because of a defect in the sidewalk abutting Lenahan's property. The court held that 'there is no common law duty resting upon the owner or occupant of premises abutting on a public street to keep the sidewalk in repair. Consequently, in the absence of statute, it is well settled that such an abutting owner or occupant is not liable to travelers injured as a result of defects in the sidewalk, which defects were not created by the owner or occupant. [Citations.]' ² (63 Cal.App.2d at page 326, 146 P.2d at page 929.)

The limited application of the exceptions to the general rule of non-liability is illustrated in the following cases: In Peters v. City & County of San Francisco, 41 Cal.2d 419, 260 P.2d 55, the plaintiff fell while walking on the sidewalk in front of an apartment house owned by Duque. In order to get into the garage of the apartment, the floor of which was lower than the sidewalk a predecessor of Duque had cut a slope into the sidewalk 11"' deep at the property line and sloping out 6'7"' into the sidewalk. The plaintiff walked into this depression. A judgment in favor of Duque was reversed because of an erroneous instruction which told the jury that 'when the owner of property abutting a sidewalk creates, by some positive action, a condition which is likely to cause harm to persons lawfully using the sidewalk, and a person so using the walk is injured as a proximate result of such condition, the property owner is then liable for that injury, in the absence, of course, of contributory negligence.' (41 Cal.2d at page 423, 260 P.2d at page 58.) This instruction was held to be inaccurate because it did...