Ziegler v. Santa Cruz City High School Dist.

• Decision Date: 02 March 1959
• Citation: 335 P.2d 709,168 Cal.App.2d 277
• Court: California Court of Appeals Court of Appeals
• Parties: Irene May ZIEGLER, Plaintiff and Appellant, v. SANTA CRUZ CITY HIGH SCHOOL DISTRICT, a Municipal Corporation, and Santa Cruz City Elementary School District, a Municipal Corporation, Defendants and Respondents. Civ. 17954.

Page 709

335 P.2d 709

168 Cal.App.2d 277

Irene May ZIEGLER, Plaintiff and Appellant, v. SANTA CRUZ CITY HIGH SCHOOL DISTRICT, a Municipal Corporation, and Santa Cruz City Elementary School District, a Municipal Corporation, Defendants and Respondents.

Civ. 17954.

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

March 2, 1959.

Hearing Denied April 29, 1959.

Dent E. Snider, J. Frank Murphy, Eugene J. Adams, Santa Cruz, for appellant.

Lucas, Wyckoff & Miller, Santa Cruz, for respondents.

BRAY, Justice.

Plaintiff appeals from judgment of nonsuit in favor of defendants in an action for damages for the death of plaintiff's minor son on school property. The complaint contained two grounds for recovery, one based upon the Public Liability Act (Gov.Code, § 53051, dangerous and defective condition of public property); the other based on alleged negligence in failing to adequately supervise their students.

Questions Presented.

Was the evidence insufficient to show (1) a dangerous and defective condition; (2) negligent supervision?

Evidence.

The school building houses elementary and junior high school students. The playground areas and the exits to them are separate for each group. The accident occurred at the rear entrance to the junior high school, where the doors open onto a landing from which 9 steps lead down to the playground area. The landing and steps are guarded by an iron handrail on each side. The handrail is 33 inches high and 2 1/4 inches wide at the top. It is supported by bars arising from each step. Adjacent to the stairs and railing on one side is a concrete stairwell leading to the basement of the building. The distance from the top of the railing to the bottom of the stairwell is 12 1/2 feet.

Leonard Evans, plaintiff's deceased son, was 13 years, 7 months old and in the 8th grade of the junior high school. On the day in question he had attended a dance in the school and during the dance the school principal, Mr. Miller, observed Leonard in horseplay with a 9th grade student, Richard. Leonard poked Richard in the ribs a few times. When the students were dismissed, Leonard proceeded out onto the stair landing where he placed his right buttock on the railing adjacent to the stairwell with one foot on the landing and one foot dangling. At this time Richard came out on the landing. Two 8th graders testified that Richard raised his arms as though to push Leonard. It is not clear from the evidence whether Richard actually pushed Leonard over or that, in endeavoring to avoid Richard, Leonard leaned backward and lost his balance. Leonard fell over the railing and into the stairwell. Leonard died from the injuries received in the fall.

1. Was There A Dangerous Or Defective Condition?

The court having granted a nonsuit, our duty is to determine whether there is any substantial evidence, or any reasonable inferences from the evidence, which would have supported a judgment in favor of plaintiff. There was nothing inherently dangerous or defective about the railing, the landing or the steps, if the landing and steps were used for the purposes for which they were intended; namely, exit from and entrance to the building. Although the landing and the stairway were heavily trafficked by students coming and going in the building, they were perfectly safe if used in the normal and customary way. According to Mrs. Prince, one of the teachers who had taught at the school for the past 10 1/2 years, no one had ever fallen over the railing. The railing was of standard construction under the Uniform Building Code. Apparently it was a railing of the type used in many schools which have steps leading into a building or even steps from one floor of a building to another floor. There was evidence that to the knowledge of the school people during a period of about 2 years the railing had been occasionally used by students for partially sitting on and leaning against. The principal and Mrs. Prince both testified to having seen students doing so. The principal had directed teachers and students to keep the area clear, although there was no specific cautioning against sitting on the railing. Two students testified to the occasional practice of sitting on the railing. One of them stated that he had once seen in the daily bulletin a warning against doing so.

Plaintiff contends that this occasional use to the knowledge of the school people constituted the railing a dangerous and defective one. We do not agree. A dangerous or defective condition is one from which it reasonably would be anticipated that injury would occur to those coming into contact with the condition. Jones v. City of Los Angeles, 1951, 104 Cal.App.2d 212, 215, 231 P.2d 167. This interpretation is not limited to property originally so designed as to be inherently dangerous in its ordinary and customary use. Its actual use may cause the property to constitute a dangerous or defective condition. Thus, in Bauman v. San Francisco, 1940, 42 Cal.App.2d 144, 108 P.2d 989, the court held that a dangerous condition existed where the defendant permitted baseball to be played on its playground without erecting a barrier for the protection of small children playing in an adjacent sandbox. 'There can be no doubt that a dangerous or defective condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect.' 42 Cal.App.2d at page 153, 108 P.2d at page 995. The court pointed out that no hard and fast rule can be laid down as to what constitutes a dangerous or defective condition but that each case must depend upon its own state of facts. It further stated that it is well settled that as a general rule the question is one of fact for the jury to determine.

In Gallipo v. City of Long Beach, 1956, 146 Cal.App.2d 520, 304 P.2d 106, a small boy fell from a pipeline, about a foot in diameter, adjacent to a bridge over a railroad right of way. No walkway had been provided for pedestrians on the bridge. Paths appeared to lead from the highway to the pipeline. The city knew that children were crossing on the pipeline and that the only action taken to guard against this practice was to set up a kind of barricade at a halfway point along this route. In holding that the manner in which the city operated and maintained the bridge constituted a dangerous or defective condition, the court stated that the use of the pipeline as a crossing was so closely connected with or in such proximity to the bridge as to make the city liable for that use. 'Additionally, where children of tender years are exposed to hazard by the manner of operation or maintenance of a municipal facility, the failure of the City to provide a barrier to prevent injury at the point or from the source of danger has been held to constitute a dangerous condition within the statute.' 146 Cal.App.2d at page 528, 304 P.2d at page 111. See Teilhet v. County of Santa Clara, 149 Cal.App.2d 305, 307, 308 P.2d 356, for discussion of the rule that the use of public property may constitute a dangerous or defective condition of the property. However, in those cases the use which made the property dangerous was more than the occasional use proved in this case. As conceded by plaintiff at oral argument, the use being made of the railing by Leonard would not have been dangerous were it not for the pushing or the attempted pushing by his fellow student. The situation is similar to that in Woodman v. Hemet Union High School District, 136 Cal.App. 544, 29 P.2d 257, 261, where the dilapidated truck which the boys were allowed to use was in a defective condition, yet the court held that under the Public Liability Act 'a public agency should only be held liable for damages resulting from the defective condition of its property in its ordinary, usual, and customary use * * *'. In Howard v. City of Fresno, 22 Cal.App.2d 41, 70 P.2d 502, a trash burning area was maintained in close proximity to the children's playground. The court pointed out that there was no evidence that any person prior to the accident in question had ever been injured or burned there, and the area was not intended for children to play in. The court said that the burning area was safe for the purpose for which it was intended--the burning of trash by park employees--and that 'the question of the dangerous character of a defective condition depends largely on the intended lawful use of the property.' 22 Cal.App.2d at page 45, 70 P.2d at page 503. In Betts v. City and County of San Francisco, 108 Cal.App.2d 701, 239 P.2d 456, a boy climbed over a picket fence and descended the concrete spillway to get a drink of water from a pipe emptying into it. The main theory of the case was that an attractive nuisance was being maintained. The court held that that theory did not apply nor was the defendant liable under the Public Liability Act. It quoted from Beeson v. City of Los Angeles, 115 Cal.App. 122, 132, 300 P. 993, to the effect that the Legislature intended in passing that act to limit the liability of a public agency for damages resulting from defective property to "* * * damages suffered in the ordinary, usual and customary use thereof." 108 Cal.App.2d at page 704, 239 P.2d at page 458. In Ford v. Riverside School Dist., 121 Cal.App.2d 554, 263 P.2d 626, an elementary school pupil was pulling thorns from a palm tree on the school premises. In doing so he caused a thorn to enter the eye of a fellow pupil. It was known to the school people that pupils occasionally played in this area, although they had been frequently notified not to do so....