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District Court of Appeal, Second District, Division 3, California.

Thomas ACOSTA, a minor, by Richard Acosta, his guardian ad Litem, and Richard Acosta, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent.*

Civ. 24671.

Decided: December 30, 1960

Freedman, Herscher, Gold & Fox, Beverly Hills, for appellants. Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, Los Angeles, for respondent.

Thomas Acosta, a minor, by his father, Richard Acosta, his guardian ad litem, brought suit against the County of Los Angeles, alleging that he was injured in a fall from a bicycle caused by a bump in a sidewalk maintained by the county. In a second cause of action the father sued for reimbursement of medical expenses. The court granted a motion of the County for summary judgment and dismissed the action. Plaintiffs appeal.

The motion was based upon an affidavit by which it was shown that an ordinance of the County prohibits the operation of a bicycle or vehicle or riding of any animal on a sidewalk or parkway except at a permanent or temporary driveway. Thomas filed a declaration stating that he was nine years of age and did now know it was unlawful to ride his bicycle on the sidewalk. It was stipulated that Thomas was not on a driveway.

Plaintiffs contend that the ordinance is invalid in that it purports to limit the liability of the County for dangerous and defective conditions of public property, imposed by the Public Liability Law (Govt.Code §§ 53050, 53051).

Unquestionably, the County has the power to restrict the use of county highways. Section 942.5 of the Streets and Highway Code so provides. Keeping bicycle riders and horseback riders off the sidewalks is as reasonable and proper an exercise of the power as one can imagine. If the effect of the ordinance is to relieve the County of liability for accidents to riders while they are using the sidewalks unlawfully, the County is not relieved of the duty to keep them in a reasonably safe condition for the safety of those who have a right to use them.

The fact is that plaintiff was a trespasser while riding his bicycle on the sidewalk. He was none the less a trespasser because of his youth. Loftus v. Dehail, 133 Cal. 214, 65 P. 379; Hickey v. Nulty, 182 Cal.App.2d 237, 5 Cal.Rptr. 914. The question is whether the Public Liability Law imposes a duty to keep public property in a reasonably safe condition for the benefit of trespassers. We hold that the duty is no greater than that of a proprietor of private property to refrain from wilful or wanton injury and from active negligence. Plaintiff is in the same position as a trespasser in a place of business open only to customers. The premises must be maintained for the safety of the latter, but a trespasser cannot complain of an unsafe condition which causes injury to him, even though a customer would be entitled to redress is he was injured in the same manner.

If, as he stated, plaintiff did not know it was forbidden to ride his bicycle on the sidewalk, his ignorance is of no moment. The very purpose of the ordinance was to put an end to a practice of children which threatened inconvenience and injury to pedestrians. It would be a dead letter if it could be disregarded by all children, or by those who had not been warned against riding their bicycles on sidewalks.

We would suppose that one reason for the authority given to a county to restrict the use of highways would be to relieve itself of responsibility under the Public Liability Law by limiting the use of premises which would otherwise be open to the public. As to those persons who are permitted to use the premises the county continues to have responsibility. As to those who are excluded, and who enter only as trespassers, there is no duty under the Public Liability Law.

For the reasons stated, Richard Acosta, the father, has no valid claims against the county for the medical expenses of plaintiff.

Plaintiff quotes from City of Winchester v. Finchum, 201 Tenn. 604, 301 S.W.2d 341, which supports his contentions. But the fact that he could have recovered for his accident if it had occurred in Tennessee is of no more significance than the fact that he would have lost his case in Alabama (Hill v. Reaves, 224 Ala. 205, 139 So. 263) or in Missouri (Williams v. City of St. Joseph, 166 Mo.App. 299, 148 S.W. 459).

There was no issue of fact to be determined and summary judgment was properly granted.

The judgment is affirmed.

SHINN, Presiding Justice.