Wisher v. Fowler
| Decision Date | 05 May 1970 |
| Citation | 86 Cal.Rptr. 582,7 Cal.App.3d 225 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Virginia Etabis WISHER, Administratrix of the Estate of Roberto Pana Etabis, deceased, Plaintiff and Appellant, v. R. W. FOWLER, Defendant and Respondent. Civ. 27050. |
F. Gordon Chytraus, Buena Park, for appellant.
Hoge, Fenton, Jones & Appel, Inc., Monterey, for respondent.
Appellate administratrix seeks recovery for the wrongful death of her decedent. Respondent's general demurrer to appellant's amended complaint was sustained without leave to amend. The appeal is from an ensuing judgment of dismissal.
As to several defendants the amended complaint alleged that on August 30, 1967 decedent, as he was leaving the Firestone Tire & Rubber Company plant in Monterey County on his motorcycle, was struck and killed by an automobile passing by on a public street onto which the plant entrance gives access. In the second cause of action liability was asserted against the present respondent upon facts summarized as follows: (1) Respondent is the owner of property abutting the public street adjacent to the plant entrance. (2) Respondent created or allowed to be maintained on his property adjoining the street a thick hedge, 8 feet high, which obscured the view of persons entering the public street from the Firestone plant until such persons were 'in excess of 15 feet on the roadway.' At the same time, drivers approaching the area of the Firestone plant on the public street were 'unable to see cars or traffic exiting therefrom except for a distance of the last 25 feet to the said access road to the Firestone plant.' The effect of the hedge in restricting vision was increased by the fact that the public road made a turn as it approached the plant entrance. (3) The posted speed for traffic in the area was 'known by defendants to be 65 miles per hour.' (4) Respondent had rejected repeated requests by representatives of the Firestone Company to remove the hedge.
Another count of the complaint alleges that the hedge was a nuisance violating the setback ordinances of the county and that, prior to the happening of the accident, respondent had been requested to abate the nuisance. Appellant's brief makes no mention of the nuisance count in the amended complaint. Accordingly, that theory will not be further discussed.
Appellant first contends, citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406, that the court erred in refusing to permit a further amendment of the complaint. But the court sustained the general demurrer without acting upon the special demurrer for uncertainty; it is to be noted also that appellant has not suggested any manner in which he would desire to improve the complaint if an amendment were to be allowed. (Cf., Cooper v. Leslie Salt Co., Supra, at p. 636, 75 Cal.Rptr. 766, 451 P.2d 406.) Accordingly, the failure to allow amendment has no significance; the real question in the appeal is whether the complaint stated a cause of action for negligence.
Appellant contends that the complaint did state a cause of action for negligence in the creation of an artificial condition on respondent's property involving an unreasonable risk of harm (citing Coates v. Chinn (1958) 51 Cal.2d 304, 332 P.2d 289, and Restatement of Torts 2d, section 363.) 1 Respondent bases his opposition to this contention only on the general rule stated in the Restatement that one is not liable for natural conditions on his land, and on the claim that 'If the plaintiff's theory is sound, every hedge, tree or building sufficiently close to any intersection to obstruct vision would be the basis for a cause of action.'
The complaint is ambiguous in alleging that respondent 'did negligently create Or allow to be maintained * * * (the hedge complained of).' (Emphasis added.) But this defect was not pointed out by special demurrer. If it were proved that respondent 'created' the hedge, the hedge would not be a 'natural condition' within the meaning of section 363 of the Restatement. (See comment b, to section 363: 'On the other hand, a structure erected...
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Sprecher v. Adamson Companies
...v. Chinn (1958) 51 Cal.2d 304, 332 P.2d 289; Harris v. De La Chapelle (1976) 55 Cal.App.3d 644, 127 Cal.Rptr. 695; Wisher v. Fowler (1970) 7 Cal.App.3d 225, 86 Cal.Rptr. 582; Potter v. Empress Theatre Co. (1949) 91 Cal.App.2d 4, 204 P.2d 120; Boarts v. Imperial Irrigation Dist. (1947) 80 Ca......
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Whitt v. Silverman
...hold that, on the present record, a jury question has been presented on this theory of the case as well. See, Wisher v. Fowler, 7 Cal. App.3d 225, 86 Cal.Rptr. 582 (1970); Salomone v. Boulanger, 32 Conn.Supp. 115, 342 A.2d 61 (Super.Ct.1975); 2 Restatement (Second) of Torts s 363(2) (1965),......
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