SEXTON v. BROOKS

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District Court of Appeal, Second District, Division 2, California.

SEXTON v. BROOKS et al.

Civ. 18063.

Decided: March 21, 1951

Moss, Lyon & Dunn, Los Angeles, Henry F. Walker, Los Angeles, of counsel, for appellant. Joseph A. Ball and Thomas F. McCarry, Long Beach, for respondent.

The judgment here on review resulted from an action to recover damages for personal injuries received when respondent fell on a cement walk allegedly maintained by and under control of the appellant.

The locus of the accident was a concrete area in front of and adjacent to business property owned by appellant in the city of Redondo Beach. The two story building was operated as a hotel on the second floor while the ground space was leased to others for shops or stores. The building and all its entrances face in a westerly direction with the hotel stairway at the extreme north end and a shoe repair store just to the south of it. A barber shop and another storeroom (vacant at the time of the accident) comprise the remainder of the ground floor. The three rooms are reached by way of a vestibule three feet wide. The face of the building stands on appellant's west property line. The sidewalk area from the building to the street is 12 feet wide, is entirely paved and is included within the 70 feet dedicated in 1902 to public use as a street which extends from appellant's west property line to the property line on the west side of the street. As shown by the photograph reproduced herein, commencing at the north line of the building there is a concrete strip 18 inches in width lying adjacent to the building. Its slope does not confrom with the topography but is kept so nearly level from the entrance southward that at the junction of the line drawn perpendicular to the property line at the north side of the vestibule of the shoe store, the concrete strip drops about six inches to its new level which continues down the street at the same grade as that of the remainder of the sidewalk. At the line where the strip drops, herein referred to as the ‘step-off,’ the concrete forms a ridge 7/878ths of an inch high and two inches wide which was constructed prior to 1918. Its evident purpose was to divert storm waters from the vestibule whose floor level is five and 3/838ths inches below the sidewalk. Commencing at the step-off the 18-inch strip continues southward as the eastern portion of the sidewalk but is given a slpe into the vestibule, forming a ramp into the first-floor stores. There was no evidence as to the identify of the agency that had actually caused the construction of the concrete strip and ramp. Appellant purchased the building March 1, 1946. The accident occurred May 10, 1948.

Respondent was a guest of the hotel. As she was proceeding from its entrance to the shoe repair shop, the caught her heel on the ridge at the step-off and was thrown forward, her body falling in the vestibule. There was no handrail at the step-off and no sign of caution. There was testimony that the ramp did not conform with architectural standards in Los Angeles county.

Appellant seeks reversal of the judgment on three grounds: (1) the evidence does not support the judgment; (2) errors in instructions given and refused; (3) errors in rulings made concerning evidence of other accidents at the same place.

The primary question thus presented for decision is whether there exists a liability upon the part of a landowner for injuries received by a potential business invitee as a result of a dangerous condition existing on the public sidewalk adjacent to the landowner's premises. From the facts recited, it is clearly established that the accident occurred on public property, an area over which appellant had never exercised control. It is a persistent principle of the common law that a sidewalk is part of the highway and that no duty is cast upon the owner of the abutting property to maintain the street in good repair. In the absence of a statute or an ordinance imposing such a burden, none exists. Martinovich v. Wooley, 128 Cal. 141, 143, 60 P. 760; Daly v. Mathews, 49 Cal.App.2d 545, 548, 122 P.2d 81; Schaefer v. Lenahan, 63 Cal.App.2d 324, 326, 146 P.2d 929. The rule is succinctly stated in the Restatement of the Law of Torts, Section 349, as follows: ‘A possessor of land over which there is a public highway or private right of way is not subject to liability for bodily harm caused to travelers upon the highway or persons lawfully using the [private right of] way by his failure to use reasonable care (a) to maintain the highway or way in a safe condition for their use or (b) to warn them of dangerous condition thereon which, although not created by him, are known to him, and which they neither knew nor are likely to discover * * *. The duty to maintain a highway in a condition safe for travel is * * * in some states by statute and in others by common law, placed upon the municipal subdivision which holds the highway open to the public for travel.’

Respondent recognizes this general rule but contends that the above decisions are not applicable. She relies upon the principles enunciated in Johnston v. De La Guerra Properties, Inc., 28 Cal.2d 394, 170 P.2d 5. The facts there disclose a situation utterly unlike that involved here. The place where Mrs. Johnston fell was a private walk which served as an approach to the defendant's restaurant.

Though intending to visit the cobbler shop, respondent herein was merely using the public highway enroute to her destination. A pedestrian does not fall within the classification of an invitee of a merchant while traversing a public street with the intention of entering upon the merchant's property. Villa v. United Electric Ry. Co., 51 R.I. 384, 155 A. 366, 75 A.L.R. 282; Duchemin v. Boston Elevated Railway Company, 186 Mass. 353, 71 N.E. 780, 66 L.R.A. 980; Prosser on Torts, sec. 79, p. 640. Unlike the Johnston decision, the dangerous condition involved herein existed wholly on a public street not constructed by appellant or any predecessor in interest.

Respondent argues that the ramp was constructed entirely for the benefit of appellant's property and that consequently she owed a duty to the respondent to keep it in a proper and safe condition, citing Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 59 A.L.R. 435; Monsch v. Pellissier, 187 Cal. 790, 204 P. 224. The Granucci case involved a situation where the landowner was permitted by the city to construct a special wooden driveway from the street to her property upon which structure he was injured. The Monsch decision was concerned with a lighwell ‘consisting of iron grating and inlaid glass for her [defendant's] sole and exclusive use and benefit.’ It is not the presence of mere benefit or advantage of the landowner that forms the basis of the liability; rather it is the fact that the owner has created or has within his control a condition entirely independent of and apart from the ordinary use for which sidewalks are designed. Granucci v. Classen, 204 Cal. at page 512, 269 P. 437.

Respondent contends that even though the scene of the accident was on a city street appellant was obligated to construct a handrail to insure the safety of such pedestrians as proceed along the sidewalk abutting appellant's building. Neither appellant nor any other private citizen may without municipal consent construct a handrail upon a public sidealk. Such a construction by appellant or one of her predecessors would have constituted a public nuisance abatable on the city's demand. The proximity of the hotel to the street conferred no privilege upon the owner to encumber the sidewalk.

As respondent moved from the hotel entrance toward the shoeshop she was only a pedestrian on the street. Appellant was no more responsible than respondent for the ridge in the sidewalk and cannot be punished for its existence. There was not a scintilla of evidence that appellant or any of her predecessors in interest at any time built the ridge, the 18-inch strip or the sidewalk. How then could she be responsible for its defects?

In view of the foregoing it will not be necessary to discuss the other points raised by appellant.

Judgment reversed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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