Glen Ray AKINS, a Minor, by his Guardian ad Litem, Davis Akins, Plaintiffs and Appellants, v. COUNTY OF SONOMA and Bay Promotions, Inc., Defendants and Respondents.
In this action brought by plaintiff, Glen Ray Akins, a minor, by his guardian ad litem, Davis Akins, to recover damages for injuries allegedly sustained by plaintiff when he fell from his seat on the top row of bleachers onto a concrete floor at the Sonoma County Fairgrounds in Santa Rosa while attending a roller derby exhibition, plaintiff, by such guardian, appeals from the judgment, based upon a jury verdict, in favor of defendants, the County of Sonoma (the “County”), the owner of the fairground premises and the bleachers from which plaintiff fell, and Bay Promotions, Inc., the promoter of the roller derby exhibition at which plaintiff was in attendance at the time of his fault.1 The various issues raised by plaintiff will be treated separately under the respective headings following the statement of facts had the discussion delineating the scope of liability of the County and Bay Promotions.
On the evening of May 17, 1962 Davis and Edna Akins, plaintiff's parents, took plaintiff, then two years and 11 months old, and their three older children, ages 8, 6 and 4 1/212 years, to a roller derby exhibition at the Sonoma County Fairgrounds in Santa Rosa. The exhibition was sponsored and promoted by Bay Promotions, who was the “licensee” of the fairground pavilion, which was owned by the County. The Akins arrived at the fairgrounds at approximately 6:45 p.m., purchased tickets for admission to the exhibition, and seated themselves on the east side of the pavilion in one of the three sections of portable bleachers which had been provided by the County to accommodate spectators at this exhibition. Just before the first half of the roller derby exhibition ended the Akins moved from their seats about half way up in the bleachers to the top row of the bleacher seats. Following the half-time intermission the Akins remained in these seats, plaintiff sitting on the outside of the family group next to his 4 1/212 year old sister on one side and a stranger, Mr. Burt Reynolds, on the other. At approximately 9:45 p.m., some 10 to 20 minutes after the second half had begun, plaintiff fell from his seat in the bleachers through a void space between the rear of his seat and the horizontal back rail slightly above and behind, landing on the concrete floor of the pavilion some 10 to 15 feet below.
Pictures of the bleacher section in which plaintiff was seated at the time of his fall were introduced into evidence. These pictures plus the testimony introduced concerning the structure of the bleachers reveal that the bleacher section consisted of approximately 13 tiered boards for seating, each seat board being approximately 9 inches wide; that the bleachers were not against a wall but were instead supported by a type of scaffolding; that the vertical bars of the scaffolding extended approximately four feet above the top seat board of the bleachers, where they were used to support three horizontal bars which provided a backing in the form of a railing for the top row seats; that the distance between the rear edge of the top row seat board and the vertical bars behind was 7 inches; and that the distance between the rear edge of the top row seat board and the lowest horizontal bar of the railing was 12 inches.
As to the manner in which plaintiff's accident actually occurred the record reveals that no one in plaintiff's family saw plaintiff fall, nor did plaintiff's father discover anyone who witnessed the fall; and that although prior to the fall plaintiff's father observed that plaintiff was sitting watching the game, at the time of the fall Mr. Akins' attention was directed to the activity of the skaters, who were in a jam session at the time. Mr. Reynolds, who was seated next to plaintiff at the time of the accident, testified that although he felt plaintiff's leg bump him at the time of the fall he did not see plaintiff fall nor could he state whether plaintiff was sitting or standing at the time of the fall. Reynolds did testify, however, that he never observed plaintiff stand on the top row seat; that prior to the accident he had on several occasions seen plaintiff reseat himself after standing to watch a jam; and that in reseating himself plaintiff slid back as he sat on the seat, “kind of wiggling back and get back where he wanted to sit to be comfortable.” In addition, Reynolds admitted that he told the policeman who made a report of plaintiff's accident that plaintiff was wiggling around and suddenly fell through the bleachers. Finally, plaintiff's father testified that when he questioned plaintiff some time after the accident as to how the fall had occurred, plaintiff replied, “ ‘I fell off watching roller derby. I was sitting there and I fall off.’ ”
The record reveals that the bleachers at the fairgrounds were owned by the County; that these bleachers had been owned by the County since 1948 and had been furnished by the County to various organizations, including Bay Promotions, which had rented the pavilion for various types of exhibitions; and that it was the County's responsibility to assemble the bleachers, which were of the portable type, and to maintain and repair them. James Lyttle, who was the general manager of the fair and who in this capacity was charged with the responsibility of maintaining and repairing the pavilion and the bleachers, testified that he had inspected the bleachers prior to plaintiff's fall; that he was aware that there was a space between the top row seat and the first railing behind the seat; that he knew that this space was large enough for a child to fall through; that he had seen children present and sitting on the bleachers at various events at the fairgrounds prior to May 17, 1962; that he expected children to be in attendance at the roller derby exhibition; and that although he did not expect children of the age of two or three to be seated on the top row of the bleachers unless they were under full control of their parents, he did expect children to be seated whenever they wished.
Henry Degenkolb, a structural engineer who had personally designed bleachers, testified that the bleachers at the fairgrounds were normal, standard bleachers and were in conformity with general engineering standards of safety. On cross-examination, however, Degenkolb testified that a child 38–inches tall and weighing 37 pounds (this being plaintiff's height and weight at the time of the fall) could fall through the void space in question while he was sitting on the top row of the bleachers.
The record further reveals that the roller derby exhibition as sponsored by Bay Promotions had been advertised through various media including literature through the mail, television, and newspaper; that it was advertised as a safe spectator sport for the whole family and for children and adults of all ages from two months to 70 years; that newspaper advertising purchased by Bay Promotions advertised the price of admission for children; and that television advertising encouraged the bringing of children to the roller derby exhibition. Plaintiff's father testified that on the night of plaintiff's accident he saw other young children at the roller derby exhibition and noticed that some of these children were sitting and others were playing on the top row seats of the bleachers. Mr. Reynolds, too, testified that he saw children of all ages and sizes present at the roller derby on the night of the accident and further testified that he had seen children of all ages and sizes on the top row seat on the same bleachers on prior occasions.
Evidence was introduced to the effect that neither the County nor Bay Promotions had posted signs on the fairground premises warning spectators concerning the void space which existed behind the top row seat of the bleachers; that no written or verbal instructions were ever given to any employee of the County with respect to warning the public about the void space in question; and that the County gave no written or oral instructions to Bay Promotions, or to any of its employees with reference to the void space itself or warning the public of the space.
In addition, Gerald Seltzer, the president of Bay Promotions, testified that this organization had been exhibiting roller derby to the public at the fairgrounds since 1961 and had used the County's portable bleachers on these occasions; and that although he personally had been to the fairground premises prior to May 17, 1962 he had at no time noticed that a void space existed between the top row seat and the horizontal railing behind this seat. Finally the record reveals that although Bay Promotions had ushers on duty on the night of the accident, the ushers were hired not to seat people but rather to ascertain whether ticket holders were in the proper section.
Bases of the County's and Bay Promotions' Liability 2
Since the issues in this case may have different application insofar as they concern defendant County and defendant Bay Promotions, we proceed first to discuss the possible bases of liability as against each defendant. Initially we note that the complaint is founded in negligence and pleads two counts, each of which refers to both defendants. The first count is predicated upon the theory that defendants negligently maintained, permitted and allowed a dangerous and defective condition, namely, dangerous and unsafe bleachers, of which condition they had notice, to exist in the fairgrounds; the second that defendants were negligent in failing to provide safe seating arrangements to plaintiff and in not adequately supervising the seating arrangements at the fairgrounds. The pretrial conference order does not delineate the issues but merely refers to the action as one based on negligence and notes that “The factual and legal contentions of the parties are adequately covered by the pleadings, to which reference is hereby made for the details thereof.”
With regard to the County it is apparent that the first count of the complaint is broad enough to encompass a cause of action under the Public Liability Act (former §§ 53050 to 53057, incl.),3 which imposed special conditions for the liability of a city, county or school district. That act, which was in effect at the time of the subject accident, provided that such an agency was liable for injuries to persons or property resulting from a dangerous or defective condition of public property if the person authorized to remedy the condition had knowledge or notice of the defective condition and for a reasonable time thereafter failed to remedy the condition or take action reasonably necessary to protect the public against that condition.
At the time of the subject accident the only recourse against a city or county for the recovery of damages inflicted by such agency in the exercise of its governmental function was under the provisions of the Public Liability Act. (Ngim v. City & County of San Francisco, 193 Cal.App.2d 138, 144, 13 Cal.Rptr. 849; Plaza v. City of San Mateo, 123 Cal.App.2d 103, 106, 266 P.2d 523.) Where, however, the city or county acted in a proprietary capacity its liability for the unsafe condition of property was not limited to the Public Liability Act but was the same as that of a private owner. (Peccolo v. City of Los Angeles, 8 Cal.2d 532, 536, 66 P.2d 651; Sanders v. City of Long Beach, 54 Cal.App.2d 651, 654, 129 P.2d 511.) In the instant case the County was acting in a proprietary capacity in the maintenance and operation of the fairgrounds. It is well established that a city or county acts in a proprietary capacity when it enters into activities which have for their purpose the amusement and entertainment of the public. (Guidi v. State of California, 41 Cal.2d 623, 627, 262 P.2d 3; Pianka v. State of California, 46 Cal.2d 208, 210, 293 P.2d 458; Chafor v. City of Long Beach, 174 Cal. 478, 489–490, 163 P. 670; Sanders v. City of Long Beach, supra, 54 Cal.App.2d, pp. 660–661, 129 P.2d 511; Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 341, 223 P.2d 639; Plaza v. City of San Mateo, supra, 123 Cal.App.2d, pp. 111–112, 266 P.2d 253; Brown v. Fifteen Dist. Agr. Fair Assn., 159 Cal.App.2d 93, 97, 323 P.2d 131.) Accordingly, at the time plaintiff's cause of action arose he had recourse against the County on the basis of both the Public Liability Act and common law negligence principles. Specifically as to those principles of common law upon which the County's negligence could be predicated, we discuss this question below.
In 1963 the Public Liability Act was repealed and superseded by the Tort Claims Act (§§ 810 to 996.6, incl.), which provides essentially that a public entity is not liable for an injury except in the instances provided by statute (§ 815).4 Under the Tort Claims Act the distinction between governmental and proprietary capacity has been abrogated, the liability provided for in the act applying to a governmental agency regardless of the capacity in which the agency acted. (See Flournoy v. State of California, 230 Cal.App.2d 520, 536, 41 Cal.Rptr. 190). 5 Specifically concerning a public entity's liability for dangerous conditions of public property, section 835 contains in substance a recodification of the Public Liability Act (applicable to cities, counties, and school districts), expanding liability to include public entities at that term is defined in section 811.2 of the act. (See legislative committee comment to § 835.) However, as pointed out in Flournoy, while the provisions of the new law insofar as they set forth conditions of liability for dangerous conditions of public property are substantially a codification of the rules of the common law as embodied in the Public Liability Act, there is provision in the 1963 legislation which is not a codification of prior law. For example, section 835.4 provides that a public entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing that, after weighing potential risk of harm against cost to the public of remedial action, it would have been impracticable for the public entity to have taken alternative action.
Although the Tort Claims Act did not become effective until September 20, 1963, it “applies retroactively to the full extent that it constitutionally can be so applied.” (Stats.1963, ch. 1681, § 45, subd. (a); Flournoy v. State of California, supra, p. 530, 41 Cal.Rptr. 190; Hayes v. State of California, 231 Cal.App.2d 48, 50, 41 Cal.Rptr. 502.) Accordingly, this legislation has been held to apply retroactively to February 27, 1961, the date the decision became final in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, abrogating sovereign immunity (Loop v. State of California, 240 A.C.A. 657, 666, 49 Cal.Rptr. 909; see Flournoy v. State of California, supra, pp. 530–537, 41 Cal.Rptr. 190); and to causes of action which arose after the 1961 moratorium legislation.6 (Hayes v. State of California, supra, 231 Cal.App.2d 50–51, 41 Cal.Rptr. 502; Moxon v. County of Kern, 233 Cal.App.2d 393, 396, 43 Cal.Rptr. 481; Boyer v. County of Contra Costa, 235 Cal.App.2d 111, 112–114, 45 Cal.Rptr. 58; Ne Casek v. City of Los Angeles, 233 Cal.App.2d 131, 141–142, 43 Cal.Rptr. 294; City of Burbank v. Superior Court, 231 Cal.App.2d 675, 682–683, 42 Cal.Rptr. 23; Shakespear v. City of Pasadena, 230 Cal.App.2d 375, 380–381, 40 Cal.Rptr. 863).
Concerning the retroactive application of the 1963 legislation to the instant case, we first point out that the abolition of sovereign immunity by judicial decision in Muskopf did not affect any existing statutory or common law liabilities of public entities (Aker v. City of Palo Alto, 194 Cal.App.2d 109, 122–123, 14 Cal.Rptr. 767; Ngim v. City & County of San Francisco, supra, 193 Cal.App.2d 138, 144–145, 13 Cal.Rptr. 849; Kotronakis v. City & County of San Francisco, 192 Cal.App.2d 138, 144–145, 13 Cal.Rptr. 849; Kotronakis v. City & County of San Francisco, 192 Cal.App.2d 624, 631, 13 Cal.Rptr. 709; Thon v. City of Los Angeles 203 Cal.App.2d 186, 189, fn. 2, 21 Cal.Rptr. 398); nor did the 1961 moratorium legislation impair any such previously recognized claims, because that legislation only declared a temporary ban upon the prosecution of tort claims which would not have been recognized prior to the Muskopf decision (Thelander v. Superior Court, 59 Cal.2d 811, 814, 26 Cal.Rptr. 643, 376 P.2d 571; Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 492–486, 20 Cal.Rptr. 621, 370 P.2d 325; see Van Alstyne, p. 234). Accordingly, in the instant case, since at the time plaintiff's injuries were sustained he had a cause of action against the County predicated both on common law negligence and on the Public Liability Act, such cause of action was not impaired either by Muskopf or by the 1961 moratorium legislation.
From these principles we conclude that to the extent that the 1963 legislation would limit or restrict the cause of action which plaintiff enjoyed against the County when this legislation took effect (for example, under the provisions of § 835.4), retroactive application of this legislation in the instant case would impair plaintiff's vested right under the former law and thus cannot be sanctioned. (See Hayes v. State of California, supra, 231 Cal.App.2d pp. 50–51, 41 Cal.Rptr. 502; Van Alstyne, pp. 234–245.) A distinction is to be drawn between the instant case and the Flournoy and Loop cases, which sanctioned retroactive application of the 1963 legislation. In Flournoy it was held, upon a summation of the factors upon which constitutional retroactivity depends, that section 835.4 could be applied retroactively to a clause of action which existed only through the retroactive application of Muskopf. Similarly, in Loop, a cause of action against a state hospital for the death of a patient which arose after Muskopf and before the enactment of the moratorium legislation, was held to be barred by section 854.8, providing that a public entity is not liable for injury to any person admitted to a mental institution, upon the rationale that it was a reasonable exercise of the legislative power.
The distinction between the application of retroactivity in Flournoy and Loop, on the one hand, and the instant case, on the other, is that t Flournoy and Loop involved causes of action arising out of governmental functions of the public entity and concerned causes of action which were not recognized prior to Muskopf. In the instant case, we are concerned with a cause of action which was previously recognized and was unaffected by Muskopf. Accordingly, such provisions of the 1963 legislation, e.g., section 835.4, as would detract from plaintiff's cause of action under either the Public Liability Act or common law negligence principles we hold to be inapplicable.
However, while we have concluded that the 1963 legislation cannot be retroactively applied in the instant case to impair plaintiff's cause of action under common law negligence principles and under the Public Liability Act, we are satisfied that because of the retroactive application of the Tort Claims Act plaintiff, in seeking recovery against the County for his injuries, is not only entitled to proceed under the Public Liability Act and under principles of common law negligence but is also entitled to rely upon those provisions of the Tort Claims Act which will benefit him and which are fairly encompassed within the framework of his complaint. (See Van Alstyne, supra, pp. 230–234.) In this regard we note section 815.6 of the Tort Claims Act, which provides as follows:
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” This section declares the rule that failure to comply with applicable statutory or regulatory standards constitutes negligence unless reasonable diligence has been exercised in an effort to comply with those standards. (See Alarid v. Vanier, 50 Cal.2d 617, 624, 327 P.2d 897; Law Revision Commission comment to § 815.6.) It is doubtful that the failure to discharge a statutory duty gave rise to a rebuttable presumption of negligence under the Public Liability Act since the scope of liability thereunder was restricted to a defective or dangerous condition of which the local agency had knowledge or notice and failed to remedy for a reasonable time after acquiring knowledge or receiving notice. (See former § 53051.) 7 In any event, it is now clear that a public entity maintaining a dangerous condition of property is not only liable where such condition results from a failure to discharge a statutory duty as provided in section 815.6. Accordingly, in the instant case, if there was any violation of a statutory duty by the County, plaintiff, by virtue of the retroactivity of the Tort Claims Act, is entitled to the benefit of the provisions of section 815.6.
Based upon our earlier conclusion that since the County was acting in a proprietary capacity in its operation of the fairgrounds its liability for unsafe conditions of the property was the same as a private owner, we next consider the nature of this liability, which is predicated solely upon principles of common law. In addition, we discuss the nature of Bay Promotion's duty towards plaintiff, which duty is founded strictly upon the common law. As a necessary prelude to these two questions we must determine whether the relationship between the County and Bay Promotions with regard to the latter's use of the fairground constituted that of lessor-lessee or licensor-licensee. A lease gives a right of exclusive possession to the lessee for a definite period, whereas a license is a nonpossessory, revocable right to use. (Von Goerlitz v. Turner, 65 Cal.App.2d 425, 429, 150 P.2d 278; Beckett v. City of Paris Dry Goods Co., 14 Cal.2d 633, 637, 96 P.2d 122; Nahas v. Local 905, Retail Clerks Assn., 144 Cal.App.2d 808, 820–822, 301 P.2d 932, 302 P.2d 829; see also Schwerdtfger v. State of California, 148 Cal.App.2d 335, 344–345, 306 P.2d 960.) The test in determining whether a particular arrangement constitutes a lease or a license is “whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license * * *.” (Von Goerlitz v. Turner, supra, 65 Cal.App.2d p. 429, 150 P.2d p. 280.)
Applying these principles to the instant case, we are of the opinion that despite the fact that the agreement entered into between the County and Bay Promotions is entitled “License Agreement for Use of Fairground Facilities” and refers to Bay Promotions as “Licensee,” the agreement is in reality a lease rather than a license. Reading the agreement in its entirety we are of the opinion that Bay Promotions was given exclusive possession of the fairground arena premises for the dates of its roller derby exhibitions. In this regard we note that under the agreement Bay Promotions agreed to maintain the premises in good condition and to “return” the premises to the County in the same condition as they were before use by Bay Promotions; and that it further agreed to permit the County to operate or to contract for the operation of food or beverage concessions on the premises. Moreover, the agreement provides that the County shall have the privilege of inspecting the premises at any or all times. Were this a license agreement such provisions would be unnecessary since the County would retain possession and control over the premises even while it was being used by Bay Promotions. In addition, the agreement provides for the payment of “rent” by Bay Promotions, such a provision contemplating a lease arrangement. (See Beckett v. City of Paris Dry Goods Co., supra, 14 Cal.2d p. 637, 96 P.2d 122.) Finally, the agreement contains a provision which forbids assignment by Bay Promotions without the consent of the County. As pointed out in Beckett, such a provision is not applicable to a license, which, because it is personal, is incapable of being assigned by the licensee. (Beckett v. City of Paris Dry Goods Co., supra, 14 Cal.2d p. 637, 96 P.2d 122.)
Based upon our conclusion that the agreement between the County and Bay Promotions was in reality a lease of the fairground premises for the dates of the roller derby exhibitions, it follows that Bay Promotions, in the capacity of lessee of the fairground premises was in possession of these premises and was subject to the duties which the law imposes upon the owner and occupier of property. (See Van Wye v. Robbins, 48 Cal.App.2d 660, 120 P.2d 507; Basye v. Craft's Golden State Shows, 43 Cal.App.2d 782, 791–792, 111 P.2d 746; Rest. Torts 2d § 356, p. 240; Prosser, Torts (3d ed. 1964) pp. 411–412; 52 C.J.S. Landlord and Tenant § 435, p. 111.) Among these duties is that of exercising ordinary care on behalf of invitees to keep the premises in a reasonably safe condition. (Laird v. T.W. Mather, Inc., 51 Cal.2d 210, 215, 331 P.2d 617; Hinds v. Wheadon, 19 Cal.2d 458, 460, 121 P.2d 724; Hardin v. Elvitsky, 232 Cal.App.2d 357, 376, 42 Cal.Rptr. 748; Van Wye v. Robbins, supra, 48 Cal.App.2d p. 662, 120 P.2d 507; Rest. Torts 2d, § 343, p. 215.) This duty on the part of Bay Promotions was clearly applicable to the instant case in view of plaintiff's status as an invitee at the fairground premises.8
In addition to Bay Promotions' duty based on the invitor-invitee relationship existing between it and plaintiff, since Bay Promotions was in possession of the subject premises and exercised control over them for the duration of its lease, it had the duty to comply with all statutes, administrative code regulations, and local building code provisions relating to the condition of the property. (See Atherley v. MacDonald, Young & Nelson, 142 Cal.App.2d 575, 582–583, 298 P.2d 700, to the effect that the duty to comply with statutory and regulatory standards relating to the condition of property is upon the person who has control over the property.) Bay Promotions argues that its duty to comply with statutory and regulatory standards extended only to those regulations which related to the actual conduct and operation of the roller derby and that Bay Promotions was not obligated to comply with laws relating to the condition of the fairground property itself, including the bleachers. In support of this argument Bay Promotions points out that it contracted to use the fairgrounds for only three days; that it was the County's duty to assemble and maintain the bleachers; and that Bay Promotions had no control over the bleachers, their construction, maintenance or assembly. Despite these arguments in support of its contention that it had no duty to comply with statutory and regulatory standards pertaining to the condition of the fairground premises and the bleachers, the fact remains that Bay Promotions, under its agreement with the County, was a lessee of the premises on the occasion of plaintiff's accident. As lessee Bay Promotions had possession and control over the fairground premises in question. And specifically as to its control over the bleachers, we note the general rule that everything which belongs to demised premises or is used with and appurtenant to them and which is reasonably essential to their enjoyment passes with a lease. (Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1, 11, 47 P.2d 462.) Accordingly, in the instant case since the agreement between the County and Bay Promotions did not exclude the bleachers from the terms of the lease and since the bleachers were clearly essential to Bay Promotions' enjoyment of the premises, they passed with the lease, thereby giving Bay Promotions possession and control over the bleachers so as to confer upon it the duty of complying with statutes and other regulations pertaining to the condition of the bleachers.
Turning to the common law bases of liability as against the County, which, according to our conclusion above, leased the fairground premises to Bay Promotions for its roller derby exhibitions, we note that a lessor of property is generally not liable for physical harm caused to persons on the leased property as a result of defective or dangerous conditions of the property. (Pfingst v. Mayer, 93 Cal.App.2d 265, 275, 208 P.2d 1002; Mundt v. Nowlin, 44 Cal.App.2d 414, 416, 112 P.2d 782; Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 747, 107 P.2d 501; Rest. Torts 2d, §§ 355, 356, pp. 239, 240.) An exception to this rule exists, however, where the lessor leased property for a purpose which involves the admission of the public. In such a situation the lessor is liable for injuries to persons on the property where such injuries result from unsafe conditions of the property existing at the time the lessee took possession. Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 380, 240 P.2d 580; Rau v. Redwood City Woman's Club, 111 Cal.App.2d 546, 549, 245 P.2d 12; Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 453, 164 P.2d 897; Goodman v. Harris, 40 Cal.2d 254, 261, 253 P.2d 447; King v. New Masonic Temple Assn., 51 Cal.App.2d 512, 515, 125 P.2d 559; Rest.Torts, 2d, § 359, p. 246.) Clearly this exception to the general rule of nonliability on the part of the lessor would be applicable in the instant case since the County knew that Bay Promotions was leasing the fairgrounds for the purpose of admitting the public to its roller derby exhibitions and since any defective condition of the bleachers at the fairgrounds existed at the time possession was transferred from the County to Bay Promotions.
In addition to this potential basis of the County's liability, it would also be liable for any violation of statute, administrative code regulation, or building code provision relating to the condition of the property. In this regard we note the case of Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17, where employees of a tenant sued the landlord for personal injuries sustained as a result of a fire on the leased premises. On appeal from a judgment in favor of the employees, the landlord contended that the trial court erred in instructing the jury that the fact that the leased premises did not conform to certain building code provisions created a presumption of negligence on the part of the landlord. The Supreme Court rejected this contention, holding that it was the landlord's duty to maintain its building in conformity with the building code provisions. We quote the following relevant language from the Supreme Court's opinion: “The situation here is analogous to the one presented in the case of Roxas v. Gogna, 41 Cal.App.2d 234, 106 P.2d 227; where an ordinance provided that if a certain building were used as a lodging house it must be equipped with a fire escape. The building was leased to one who, by his use of the premises, brought it within the provisions of the ordinance. It was there held that the plaintiff, one of the lodgers, was entitled to recover against the owners of the building for injuries sustained by him when he was forced to jump from a second story window during a fire. The court said that while the ordinance did not name the person upon whom the duty to provide the fire escape rested, where the owner leased the premises knowing for what purpose it was to be used, the duty to comply with the ordinance should be upon him. In such a case, the obligation of the owner as to third persons is not under the contract with the lessee, but rather under the law, violation of which constitutes negligence. [Citations.] Statutes and ordinances prescribing the safety features of buildings impose a duty of compliance upon the property owner. Where such a statute or ordinance fails to designate the person charged with the duty of compliance, the initial responsibility is that of the owner. [Citations.]” (P. 423, 218 P.2d p. 26, see also Longway v. McCall, 181 Cal.App.2d 723, 729, 5 Cal.Rptr. 818.)
So in the instant case it was the duty of the County, as owner of the fairgrounds, to comply with applicable statutory and regulatory standards relating to the condition of its property, and any failure of the County to comply with such applicable statutory provisions would, as we proceed to discuss, give rise to a presumption of negligence on the part of the County.
Safety Orders, Administrative Regulations, and Local Building Codes
Plaintiff requested the trial court to instruct the jury in terms of various General Industrial Safety Orders contained in Title 8 of the California Administrative Code, various Regulations of the State Fire Marshal contained in Title 19 of the Administrative Code, and various sections of the building codes adopted by the County and Santa Rosa.9 In addition, plaintiff proffered an instruction to the effect that if either defendant in this action violated any of these safety orders, regulations, or building code provisions a presumption of negligence arose as to that defendant which presumption could be overcome by evidence showing that, under all the circumstances surrounding the event, such defendant's conduct was excusable or justifiable. The trial court refused to give any of these requested instructions and in fact informed the jury at the conclusion of the trial that as a matter of law no safety regulations were applicable in the instant case. In determining whether the trial court erred in refusing to give these instructions, we consider separately the safety orders, regulations, and building code provisions. Initially we set out the general principles relating to the applicability of such enactments to a negligence action.
It is well established that although the standard of care to which one must conform is ordinarily that of the prudent or reasonable person under like circumstances, the proper conduct of a reasonable person under particular situations may be prescribed by statute, administrative regulation, or ordinance. (Alarid v. Vanier, supra, 50 Cal.2d 617, 621, 327 P.2d 897; Gallup v. Sparks–Mundo Engineering Co., 43 Cal.2d 1, 9, 271 P.2d 34; Tossman v. Newman, 37 Cal.2d 522, 525, 233 P.2d 1; Williams v. Lambert, 201 Cal.App.2d 115, 118–119, 19 Cal.Rptr. 728; see Nungaray v. Pleasant Valley etc. Assn., 142 Cal.App.2d 653, 663, 300 P.2d 285; Hyde v. Russell & Russell, Inc., 176 Cal.App.2d 578, 584–585, 1 Cal.Rptr. 631; De Muro v. Masterson Trusafe Steel Scaffold Co., 193 Cal.App.2d 784, 791, 14 Cal.Rptr. 551; Lotta v. City of Oakland, 67 Cal.App.2d 411, 413, 154 P.2d 25; Huett v. Good, 194 Cal.App.2d 183, 186, 15 Cal.Rptr. 172, Finnegan v. Royal Realty Co., supra, 35 Cal.2d 409, 416, 218 P.2d 17; 2 Witkin, Summary of Cal.Law (1960) Torts, § 230, p. 1423.) In such situations the defendant's failure to comply with the statutory standard may give rise to a presumption of negligence on his part. (Gallup v. Sparks–Mundo Engineering Co., 43 Cal.2d 1, 9, 271 P.2d 34; Tossman v. Newman, 37 Cal.2d 522, 525, 233 P.2d 1; Williams v. Lambert, 201 Cal.App.2d 115, 119, 19 Cal.Rptr. 728; Alarid v. Vanier, supra, 50 Cal.2d p. 621, 327 P.2d 897.) Such presumption of negligence may arise whether the law violated be a state statute, a safety order, an administrative regulation, or a local building code provision. (Safety orders and administrative regulations: Wiese v. Rainville, 173 Cal.App.2d 496, 510, 343 P.2d 643; Longway v. McCall, supra, 181 Cal.App.2d 723, 727, 5 Cal.Rptr. 818; Hyde v. Russell & Russell, Inc., 176 Cal.App.2d 578, 583, 1 Cal.Rptr. 631; Di Muro v. Masterson Trusafe Steel Scaffold Co., supra, 193 Cal.App.2d p. 791, 14 Cal.Rptr. 551; city and county building codes: Finnegan v. Royal Realty, supra, 35 Cal.2d p. 416, 218 P.2d 17; Merion v. Schnitzlein, 129 Cal.App. 721, 723, 19 P.2d 244; Block v. Snyder, 105 Cal.App.2d 783, 786–789, 234 P.2d 52.) Two conditions, however, are requisite to the utilization of a statute or regulation as defining a defendant's standard of care: first, the purpose of the statute must be to protect a class of persons of which the plaintiff is a member, and, second, the harm suffered by the plaintiff must be of the type which the statute was intended to prevent. (Nunneley v. Edgar Hotel, 36 Cal.2d 493, 497, 225 P.2d 497; Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 590, 177 P.2d 279; Hatch v. Ford Motor Co., 163 Cal.App.2d 393, 399, 329 P.2d 605; Boie–Hansen v. Sisters of Charity, 152 Cal.App.2d 845, 848, 314 P.2d 189; Richards v. Stanley, 43 Cal.2d 60, 62, 271 P.2d 23; Rest. Torts 2d, § 286, p. 25.) Accordingly, before a trial court is entitled to instruct a jury that a defendant's violation of a particular statute or regulation gives rises to a presumption of negligence on the part of the defendant, the court must not only construe the proffered statute to determine its meaning and scope of application, but it must also determine whether the purpose of the statute satisfies the two conditions set forth above. (Code Civ.Proc. § 2102; Hom v. Clark, 221 Cal.App.2d 622, 636–637, 35 Cal.Rptr. 11; Reid & Sibell v. Gilmore & Edwards Co., 134 Cal.App.2d 60, 72, 285 P.2d 364; Chiappe v. Eichenbaum, 169 Cal.App.2d 46, 53, 336 P.2d 1045.) If the court determines that the particular statute is applicable in terms of its scope and purpose to the particular case in question then it becomes the function of the jury, after being instructed in terms of the particular statute, to resolve any disputed questions of fact as to whether the defendant did violate the statute, to determine whether the presumption of negligence on the part of the defendant arising from his violation of the statute has been rebutted by evidence that the defendant's conduct was excusable or justifiable, and finally to determine whether the defendant's negligence resulting from his violation of the statute constituted an actual and proximate cause of the plaintiff's injury.
With these principles in mind we turn to the various safety orders, regulations, and city and county building code provisions which plaintiff claims are applicable in the instant case. Considering first the General Safety orders contained in Title 8 of the Administrative Code,10 we note that the applicability of these safety orders depends initially upon a determination that he premise involved is a “place of employment” and that the person sought to be charged with compliance is an “employer.” (Hardin v. Elvitsky, supra, 232 Cal.App.2d 357, 371–372, 42 Cal.Rptr. 748, 121 P.2d 724, and cases cited therein.) Labor Code section 6302 defines “ ‘Place of employment’ ” as “any place, and the premises appurtenant thereto, where employment is carried on”; and Labor Code section 6304 defines “ ‘Employer’ ” as including “every person having direction, management control, or custody of any employment, place of employment, or any employee.” Clearly in the instant case, since the evidence reveals that ushers employed by Bay Promotions were on duty at the fairgrounds on May 17, 1962 and that County employees performed work in the fairground pavilion in the form of erecting, repairing, and taking down the bleachers and in the form of cleaning the pavilion, the conclusion that the fairgrounds was a “place of employment” and that both defendants were “employers” within the meaning of Labor Code sections 6302 and 6304 is compelled.
Thus, since the benefit of such safety orders has been extended by judicial decision in California to the general public in places of employment (Porter v. Montgomery Ward & Co., Inc., 48 Cal.2d 846, 849, 313 P.2d 854; Wiese v. Rainville, supra, 173 Cal.App.2d 496, 510, 343 P.2d 643; Hyde v. Russell & Russell, Inc., supra, 176 Cal.App.2d 578, 583–584, 1 Cal.Rptr. 631; Longway v. McCall, supra, 181 Cal.App.2d 723, 727, 5 Cal.Rptr. 818, it remains to be determined only whether any of the subject safety orders are applicable to the instant case. This question involves essentially the construction and interpretation of the subject safety orders in order to determine whether, by their terms, they are applicable to portable bleachers such as those involved in the instant case. As we have stated above, this determination involves questions of law for the court. Turning to sections 3238 and 3239, which set forth requirements for wall openings and floor holes, we note that neither is applicable in this case since the bleachers from which plaintiffs fell contain no wall openings or floor holes as those terms are defined in sections 3211, 3212, and 3222.
The more difficult question, however, relates to the applicability of section 3237, which requires that platforms be at least two feet wide and that they be equipped with toeboards and standard railings on all open sides. A platform is defined in section 3215 as “an elevated working level for persons.” Section 3223 in turn defines working level as “a platform, walkway, runway, floor or similar area fixed with reference to the hazard and used by employees in the course of their employment.” We are of the opinion that although the record contains evidence to the effect that the County's employees assembled and disassembled the bleachers and maintained and repaired them and that although in so doing, the employees were required to stand on the bleachers, it cannot be said that the bleachers were “used by employees in the course of their employment” as that phrase is used in section 3223 to define a “working level for persons.” The distinction we wish to make is between the structure or object which the employees are constructing, disassembling or repairing, on the one hand, and the tools which the employees use in erecting, dissembling, or repairing the structure, on the other. It cannot be reasonably argued that a structure which is being constructed or repaired or disassembled and which has certain intrinsic properties or characteristics which make it the type of structure which it is and make it functional as that type of structure must be equipped with various safety devices which are not in harmony with the structure itself and which, in certain situations, would destroy the functional purpose of the structure. So in the instant case if the safety orders applicable to platforms were held to be applicable to bleachers simply by virtue of the fact that the bleachers were assembled, disassembled, and repaired by employees the bleachers would not be suitable for the purpose for which they are intended, namely, to provide seating for spectators. Accordingly, we conclude that it could not have been the intent of the enactors of the subject safety orders to make them applicable to bleachers. Upon this basis we conclude that the trial court did not err in refusing to instruct the jury in terms of the proffered safety orders relating to platforms.
It is apparent that the trial court did not err in refusing to instruct in terms of Title 19 sections 3, 4, 269, 33.15 and 57.16 of the Regulations of the State Fire Marshal.11 With regard to former section 269 the evidence in the record is without conflict as to the fact that the bleachers from which plaintiff fell were equipped with a back railing, thus conclusively establishing compliance with this section. As to sections 33.15 and 57.16, these provisions were not in effect at the time of plaintiff's accident. It is settled that laws enacted subsequent to the date of an accident are not relevant in determining the appropriate standard of conduct. Zellers v. State of California, 134 Cal.App.2d 270, 276, 285 P.2d 962; see Beeks v. Joseph Magnin Co., 194 Cal.App.2d 73, 79–80, 14 Cal.Rptr. 877. Accordingly, since these sections were inapplicable to the instant case, it was likewise not error for the trial court to refuse to instruct as to sections 3 and 4 of the subject regulations which merely defined the purpose of the regulations and provided for their applicability in certain types of buildings.
We turn now to the sections of Santa Rosa's and the County's building codes which plaintiff contends are applicable in the instant case. Section 3315 of the 1958 edition of the Uniform Building Code, which code was adopted by County Ordinance Nos. 595 and 627, and section 3315 of the 1955 edition of the Uniform Building Code, which code was adopted by Santa Rosa Ordinance No. 860, contain the identical provision to that found in former section 269 of the State Fire Marshal Regulations, namely, that a railing must be provided at the back of any bleacher section which is not placed against a wall. An instruction in terms of these building code provisions was therefore properly refused by the trial court for the same reason as justified its refusal of former section 269, namely, that there was no evidence in the record showing defendants' violation of these provisions. To the contrary, all the evidence in the record indicated that the bleachers from which plaintiff fell were provided with a back railing and that they were thus in compliance with the subject building code provisions.
Section 3315 of the 1961 edition of the Uniform Building Code, which code was adopted by Santa Rosa Ordinance No. 1052, refers to chapter 7 of the appendix for specific and general requirements pertaining to bleachers. Section 716 of the appendix to the code contains an identical provision with regard to guardrails as that found in section 57.16 of the Administrative Code Regulations of the State Fire Marshal. Defendants argue that these building code provisions are not applicable in this case on the basis that, although the 1961 edition of the Uniform Building Code was adopted by Santa Rosa in March 1962 and prior to the subject accident, its provisions cannot be applied retroactively to property which was acquired before the City's adoption of the building code. (See Markwalder v. Leonhard, 152 Cal.App.2d 254, 258, 313 P.2d 200.) In considering this contention we note section 104(g) of the subject code, entitled “Existing Occupancy,” which provides as follows: “Buildings in existence at the time of the passage of this Code may have their existing use or occupancy continued, if such use or occupancy was legal at the time of the passage of this Code, provided such continued use is not dangerous to life.” Further we note that an “existing building” is defined in section 403 as “a building erected prior to the adoption of this Code”; that the same section defines a “building” as “any structure built for the support, shelter, or enclosure of persons, animals, chattels, or property of any kind”; and that section 420 defines a “structure” as “that which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner.”
In the light of these definitions it is clear that the subject bleachers constituted a “building” within the meaning of section 403 since they were a “structure built for the support * * * of persons * * *.” As to whether they were an “existing building,” that is, a building “erected” prior to the adoption of the code, although the record discloses that the bleachers had been acquired by the County in 1948 and that they were of the portable type which were assembled and disassembled from time to time, it is silent as to when they were last assembled prior to the subject accident. If they were assembled after the adoption of the subject code on March 6, 1962 they would not have constituted an “existing building” and thus would clearly be subject to the provisions of the code.
Assuming arguendo that the subject bleachers had been erected and assembled prior to the adoption of the code, we point out that even though they constituted an existing building, they would be subject to the provisions of the code if their continued use was dangerous to life as provided in section 104(g). Since this section expressly provides that buildings in existence are entitled to have their existing use or occupancy continued if such use is not dangerous to life, it is apparent that Santa Rosa, in adopting the Uniform Building Code, clearly intended that its provisions would apply to existing buildings whose use was dangerous to life. It is well settled that a statute is to be given retroactive effect when there is a clearly expressed legislative intent that it is to have that effect. (Di Genova v. State Board of Education, 57 Cal.2d 167, 172–173, 18 Cal.Rptr. 369, P.2d 865; Corning Hospital Dist. v. Superior Court, supra, 57 Cal.2d 488, 494, 20 Cal.Rptr. 621, 370 P.2d 325; People v. Daniels, 222 Cal.App.2d 99, 101, 34 Cal.Rptr. 844.)
Moreover, the limited retroactive operation of section 104(g) of the Uniform Building Code is not unconstitutional or in violation of existing vested rights. The requirements of a building code or ordinance for the protection of health and lives of persons occupying buildings may be made applicable to existing buildings. (Finnegan v. Royal Realty Co., supra, 35 Cal.2d 409, 415–416, 218 P.2d 17; Abbate Bros., Inc. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691, 694–695; City of Seattle v. Hinckley, 40 Wash. 468, 82 P. 747, 748–749, 2 L.R.A., N.S., 398; Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82–83, 66 S.Ct. 850, 90 L.Ed. 1096; 7 McQuillin, Municipal Corporations (3d ed. 1949) § 24–512, p. 497.) The rationale underlying this principle is stated thusly in City of Seattle: “[T]here is no merit in the contention that the respondent had any inherent or vested right because he had complied with the law existing at the time he built. There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But, to be protected against such impairment or imperilment, is the universally recognized right of the community in all civilized governments; a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power. When the subject of legislation is a proper subject of such exercise * * * private rights are always held subservient to the public weal, and the Legislature must be the judge of the propriety or extent of the remedy.” (82 P. page 748.)
In the instant case it is obvious that the object of section 716 of the building code was to protect persons from injury and that to the extent the bleachers deviated from the requirements of section 716 and thus increased the risk of such injury their continued use in this condition was “dangerous to life.” Thus section 104(g) of the code furnishes the authorization for application of section 716 to the bleachers in the instant case. Turning then to the provisions of section 716 to determine if they are applicable to the instant case, we set forth in full the crucial language of this section: “Guardrails shall be required in all locations where the top of a seat plank is more than four feet (4′) above the grade * * *. 1. Railings shall be forty-two inches (42″) above the rear of a seat plank * * *. 2. A midrail shall be placed adjacent to any seat to limit the open distance above the top of any part of a seat to ten inches (10″) where the seat is at the extreme end or at the extreme rear of the bleachers or grandstand * * *. EXCEPTION: Railings may be omitted when stands are placed directly against a wall or fence giving equivalent protection.” It is plaintiff's contention that in the instant case the lowest horizontal bar of the railing behind the top rear seat of the subject bleachers did not comply with the requirement of section 716 that the “midrail shall be placed adjacent to any seat to limit the open distance above the top of any part of a seat to ten inches * * *.” With this contention we agree. The record clearly discloses that the distance between the rear edge of the top bleacher seat from which plaintiff fell and the lowest horizontal bar of the railing behind the rear seat was 12 inches, measured on a diagonal. Thus, the open distance above the top of every part of the seat, and particularly above the top of the rear edge of the seat, exceeded the 10–inch maximum requirement. Defendants, however, argue that the 10–inch opening referred to in this section must be measured n the vertical starting from the point at which the top seat, if extended back 7 inches, would meet the vertical bars of the railing. We cannot accept this interpretation of section 716. Although the section contemplates that the midrail be placed at a level higher than that of the seat, the section speaks of limiting to 10 inches the open distance above the top part of a seat. That “open distance” which must be limited to 10 inches can only be meaningful if it is measured directly from the seat to the bar regardless of whether that measurement be a vertical or a diagonal one.
Not only are we of the opinion that the railing behind the top seat of the subject bleachers did not comply with the subject provisions of the building code adopted by Santa Rosa, we also believe that the purpose of these provisions was to protect persons sitting on the top row seat from falling from this seat. Accordingly, plaintiff was within the class of persons for whose protection such provisions were enacted and the injuries which he sustained were of the type sought to be prevented by these building code provisions.
Accordingly, we conclude that the trial court erred in refusing to instruct the jury in terms of these building code provisions and, additionally, in refusing to instruct that defendants' violation of these provisions gave rise to a presumption of negligence on their part. Insofar as both defendants were concerned, plaintiff was entitled to such instructions under defendant's common law liability for negligence. In addition, as against the County plaintiff was entitled to these instructions under section 815.6 of the Tort Claims Act. Moreover, we point out that plaintiff was entitled to such instructions irrespective of his status at the fairgrounds vis-a-vis each defendant, since the statutory duty imposed by the subject provisions of the building code inured to the benefit of plaintiff, who as a member of the general public, is one of the class of persons whom the building code was intended to protect. (See Atherley v. MacDonald, Young & Nelson, supra, 142 Cal.App.2d 575, 298 P.2d 700; hardin v. Elvitsky, supra, 232 Cal.App.2d 357, 369, 42 Cal.Rptr. 748; Longway v. McCall, supra, 181 Cal.App.2d 723, 734, 5 Cal.Rptr. 818.)
The “Mere Happening of the Accident” Instruction
Our conclusion that the provisions of sections 3315 and 716 of the 1961 edition of the Uniform Building Code adopted by Santa Rosa are applicable in the instant case, thereby establishing a presumption of negligence on the part of defendants resulting from the fact that the bleachers from which plaintiff fell did not comply with the provisions of these sections, compels a conclusion favorable to plaintiff as to his contention that the trial court erred in giving the “mere happening of the accident” instruction.12 In Alarid v. Vanier, supra, 50 Cal.2d 617, 625, 327 P.2d 897, our Supreme Court held that the giving of this instruction is error where a presumption of negligence arises as a result of a defendant's violation of a statute. Accordingly, since such a presumption of negligence arose in the instant case it was error for the trial court to give the “mere happening of the accident” instruction.
Instructions Relating to Public Liability Act As Being the Sole Basis for the County's Liability
The trial court, upon the request of the County, instructed the jury that “Plaintiff's cause of action, if any he has, against the defendant County of Sonoma, is based upon an must meet the requirements of a law of this state known as the Public Liability Act,” and then proceeded to instruct on the meaning of the provisions of this act. Plaintiff contends that the giving of these instructions was error for the reason that they improperly limit the theory of liability as against the County, whose liability may also be based upon its breach of a mandatory duty, i.e., violation of a statute, safety order, or ordinance. In view of the preceding discussion and our conclusion that the County's liability could be predicated upon its violation of law either under common law principles or under the Tort Claims Act and that further the County, as lessor of property to which the public is to be admitted, would be liable under the common law for injuries resulting from unsafe conditions existing at the time the lessee took possession, plaintiff's contention is correct.
The Instruction Defining “Dangerous or Defective Condition”
Plaintiff takes issue with the instruction requested by the County defining the term “dangerous or defective condition” as that term was used in the Public Liability Act. This instruction reads in part as follows: “A dangerous or defective condition, as denoted by the use of that term in these instructions, means a condition of the bleachers in question that would have caused them to be not reasonably safe for persons who, with ordinary care for their own safety, used said bleachers or might have used them for the purpose intended, or as expressly or impliedly invited, or as permitted by the controlling authority.” (Emphasis added.) Plaintiff's contention that the italicized portion of this instruction is “repugnant to the conclusive presumption against a finding of contributory negligence which clothed Appellant in this case” is correct in view of the removal of the issue of contributory negligence from the case.13
The Stricken Portion of the License Agreement Between the County and Bay Promotions
Although the license agreement between the County and Bay Promotions was introduced into evidence, at the conclusion of the trial the court informed the jury that it had stricken from the agreement paragraph 17 thereof which provides that “All safety orders of the Division of Industrial Safety, Department of Industrial Relations, must be strictly observed.” Plaintiff contends that the striking of this portion of the agreement was error. Since we have determined that the General Safety Orders were not applicable in the instant case, we conclude that the trial court did not err in striking paragraph 17 of the agreement from evidence.
The Stricken Portion of Mr. Brinegar's Deposition
The deposition of Mr. Brinegar, a retired engineer of the Division of Industrial Safety, who was unable to attend the trial because of illness, was marked for identification in the instant case, and after portions thereof were stricken by the trial court upon motion by defendants, the remainder was read to the jury. Plaintiff contends that the trial court erred in striking the following portion of Mr. Brinegar's deposition: “Q. [By counsel for Bay Promotions] How did you happen to get in touch or contact with Mr. Hartmann about this? A. The bleachers as I saw them were not in conformance with the General Industry Code, and I reported them to Mr. Hartmann and suggested that he make a survey of them, because I felt that a survey was justified.”
Defendants' motion to strike this portion of Mr. Brinegar's deposition was granted on the basis that Mr. Brinegar's answer to the question by counsel for Bay Promotions was not responsive. We cannot agree with the trial court's conclusion that this answer by Mr. Brinegar was not responsive to the question asked of him. The purport of Brinegar's answer was that he contacted Mr. Hartmann to report to him that the bleachers were not in conformity with the “General Industry Code. * * * ” However, whether or not the trial court erred in striking this statement it is apparent that plaintiff was not prejudiced by this ruling since, as we have concluded, the safety orders to which Mr. Brinegar referred in this statement were not applicable in the instant case.
The Alleged Negligence of Plaintiff's Parents
On the first morning of trial and prior to the commencement of the voir dire examination of the jury, plaintiff made a motion in limine to restrict the voir dire and to preclude the introduction of evidence with regard to alleged negligence on the part of plaintiff's parents in failing to properly supervise plaintiff. This motion was denied by the court. Accordingly, evidence was introduced concerning the degree of supervision and control which plaintiff's parents exercised towards plaintiff at the roller derby exhibition and in addition during voir dire examination of the jury and opening and closing arguments counsel for both defendants made numerous references to the duty of a parent to supervise his child and to the fact that defendants would be absolved from liability if the jury determined that the negligence of plaintiff's parents was the sole cause of plaintiff's fall. Plaintiff contends that since plaintiff's parents were not parties to this action and since any alleged negligence on their part could not be imputed to plaintiff to bar his recovery, the question of the negligence of plaintiff's parents was not a proper issue in the instant case. Moreover, plaintiff argues that as a result of the trial court's allowing this question to be considered by the jury, “The real issues as to Respondents' legal responsibility in the case were completely obscured if not obliterated.”
While it is true that the negligence, if any, of parents is not imputable to the child in an action by the latter for injuries (Zarzana v. Neve Drug Co., 180 Cal. 32 35–37, 179 P. 203, 15 A.L.R. 401; Crane v. Smith, 23 Cal.2d 288, 301; Reynolds v. Willson, 51 Cal.2d 94, 102, 331 P.2d 48), such negligence may nevertheless be relevant in determining whether a third person is liable for such injuries. In the instant case, the question of the negligence of plaintiff's parents was relevant, firstly, in determining whether defendants were in fact negligent. As stated in section 302A of the Restatement of the Law of Torts 2d “An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of * * * a third person.” (Emphasis added; p. 86; see also Kaukonen v. Aro, 142 Cal.App.2d 502, 505, 298 P.2d 611; Prosser, Torts (3d ed. 1964) § 33, pp. 168, 173–176.) The converse of this principle is obviously that a person does not act negligently if he cannot be expected to reasonably foresee the existence of an unreasonable risk of harm to another through the intervention of negligence of a third person.
The negligence of plaintiff's parents was also relevant on the issue of actual causation. In order to hold defendants liable it was necessary for plaintiff to show that the negligence of defendants, or either of them, contributed in some way to plaintiff's injury, “so that ‘but for’ the defendant's negligence the injury would not have been sustained.” (2 Witkin, Summary of Cal. Law (1960) torts, § 284, p. 1484; see Rest.Torts 2d, § 432, p. 430.) Accordingly, although defendants, if found to be negligent, would not be relieved from liability simply because the negligence of plaintiff's parents concurred with defendants' negligence in causing plaintiff's injury, defendants would not be liable for plaintiff's injuries if, despite their negligence, plaintiff would have sustained the same injuries as a result of the negligence of his parents. In other words, if, because of lack of supervision by his parents, plaintiff would have fallen from the bleachers even if defendants had provided safe seating arrangements and had adequately supervised the seating at the fairgrounds, then defendants' negligence would not be the “cause in fact” of plaintiff's injuries.
Finally, the question of the negligence of plaintiff's parents is relevant as to the issue of proximate cause. This issue is concerned with whether or not, assuming that a defendant was negligent and that his negligence was an actual cause of the plaintiff's injury, the defendant should be held responsible for the plaintiff's injury where the injury is brought about by a later cause of independent origin. This question, in turn, revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries. (Rest.Torts 2d, § 440, et seq., p. 465; Witkin, supra, § 289, p. 1488, and cases cited therein.) In the instant case, for example, it could be argued that if plaintiff's parents were negligent in failing to exercise proper care for plaintiff's safety, their negligence constituted an intervening cause. Following this line of reasoning, it would be incumbent upon the jury to determine whether the negligence of plaintiff's parents was foreseeable to defendants or, if not foreseeable, whether it nevertheless resulted in a type of injury which was foreseeable to defendants.
The “Sole Proximate Cause” Instruction
Based upon our conclusion that the question of the negligence of plaintiff's parents was properly injected into the instant case, we similarly conclude that the instruction which the trial court gave on “sole proximate cause” was proper. This instruction, which followed instructions requested by plaintiff defining “proximate cause” in terms of actual and legal cause,14 told the jury that “if it appears from the evidence that the sole proximate cause of the accident and injury to the plaintiff was the negligence of the parents of the plaintiff Glen Ray Akins or of some third parties, that this would constitute a complete defense to the defendants” was a proper instruction. In the light of all of the instructions on “proximate cause,” the purport of the subject “sole proximate cause” instruction was that if the jury found that plaintiff's accident would have occurred even without negligence on the part of defendants, i.e., that the sole actual cause of the accident was the negligence of plaintiff's parents, then defendants would be relieved from liability, and that even if they found that defendants' conduct was an actual cause of plaintiff's injury, defendants would nevertheless be absolved if the jury found that the negligence of the parents was a supervening intervening cause, i.e., an intervening cause which was neither foreseeable nor caused the type of injury which was foreseeable.
We wish to point out, however, that although we have concluded that the “sole proximate cause” instruction was proper, it would have been more meaningful to the jury, to the extent that this instruction related to the issue of the intervening negligence of plaintiff's parents and its effect upon defendants' liability, if the concept of intervening cause had been explained to them and if they had been more fully instructed as to the effect of an intervening cause upon defendants' liability. (See BAJI Instructions Nos. 104–C, 104–C.1, and 104–C.2.) However, since the “sole proximate cause” instruction was a correct statement of law and since plaintiff did not propose such additional clarifying instructions, he cannot now urge error in the giving of this instruction. (Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 789, 244 P.2d 70, James v. Myers, 68 Cal.App.2d 23, 29, 156 P.2d 69; Wirthman v. Isenstein, 182 Cal. 108, 110–111, 187 P. 12; Townsend v. Butterfield, 168 Cal. 564, 569, 143 P. 760.)
Instructions on Preponderance of Evidence and Burden of Proof
Plaintiff takes issue with the following two instructions which the trial court gave: “The term ‘preponderance of evidence’ is not a mere figure of speech, nor is it to be lightly looked upon by a jury; it is a substantial right given by law that you cannot render a verdict against a defendant unless the plaintiff has established his case by a preponderance of the evidence. I charge you, therefore, that before any juror is warranted, under this oath, to assent to a verdict in favor of the plaintiff, the plaintiff's case must first be established by a preponderance of the evidence.” “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon which the burden of proof rests to establish that fact should suffer and not his adversary. The plaIntiff cannot recover where the facts go no further than to establish a possibility, that the defendant's negligence was the proximate cause of the injury.” We agree with plaintiff's contention that these instructions were unduly repetitious, argumentative, and served to emphasize defendants' case to an undue extent. Not only were the principles of law contained in these instructions thoroughly covered in a number of other instructions given to the jury, but also the instruction relating to preponderance of the evidence, while correct as an abstract statement of the principle involved, was not an ideal statement of that principle and ought not to have been given. Since this case must be retried we need not discuss whether the court erred in giving these instructions; rather it suffices to caution the trial court that such instructions are likely to mislead the jury and therefore should not be given.
Applicability of Res Ipsa Loquitur Doctrine
Plaintiff proffered instructions on the doctrine of res ipsa loquitur both as to its absolute and conditional application to the facts of the instant case. It is the trial court's refusal to give these instructions which plaintiff assigns as error, plaintiff contending in this regard that “It was not for the [trial] Court to rule as a matter of law that the doctrine of res ipsa loquitur is not applicable.” We cannot agree with plaintiff's contention. The res ipsa loquitur doctrine, which allows an inference of negligence on the part of a defendant to arise, has application only in the situation where the plaintiff, although able to show that he has been injured by some instrumentality, is unable to point specifically and definitively to the negligent act or omission on the part of the defendant which caused his injury. (2 Harper & James, Law of Torts (1956) § 19.5, pp. 1075, 1076.) In such a situation since proof of a negligent act or omission on the part of the defendant is essential to showing the defendant's breach of duty to the plaintiff and is therefore an essential element of the negligence cause of action, the plaintiff, under general principles of negligence law and without the aid of the res ipsa loquitur doctrine, would be unable to recover against the defendant on a negligence theory. The res ipsa loquitur doctrine, however, by creating an inference of the defendant's negligence in such situations enables the plaintiff to overcome this hurdle.
It thus becomes apparent that in the situation where the injured plaintiff can point specifically and definitively to the act or omission on the part of the defendant which caused his injury and the sole issue in the case is whether or not this act or omission constitutes negligence there is no justification for resort to the doctrine of res ipsa loquitur. In Di Mare v. Cresci, 58 Cal.2d 292, 299, 23 Cal.Rptr. 772, 776, 373 P.2d 860, 864, we find the Supreme Court stating as follows concerning the applicability of the res ipsa loquitur doctrine: “The introduction of evidence of specific acts of negligence does not deprive the plaintiff of the benefit of the doctrine unless the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law thus eliminating any justification for resort to the inference of negligence. [Citations.]” (Emphasis added; see also Leet v. Union Pac. R.R. Co., 25 Cal.2d 605, 622, 155 P.2d 42, 158 A.L.R. 1008; Borenkraut v. Whitten, 56 Cal.2d 538, 548, 15 Cal.Rptr. 635, 364 P.2d 467; Fedler v. Hygelund, 106 Cal.App.2d 480, 487, 235 P.2d 247.) Reduced to its essentials the rule under discussion means that if the plaintiff furnishes a full and complete explanation of the occurrence, there is no room for the inference supplied by the doctrine of res ipsa loquitur. (See Prosser, Torts (3d ed. 1964) § 40, pp. 232, 236; Shahinian v. McCormick, 59 Cal.2d 554, 563–564, 30 Cal.Rptr. 521, 381 P.2d 377.)
In the instant case the facts are undisputed as to how the accident happened and the care exercised by defendants. There is no dispute as to the facts relative to the particular construction of the bleachers from which plaintiff fell. The crucial issue on the question of defendants' negligence is simply whether the facts adduced by plaintiff as to the care exercised by defendants constituted negligence. Accordingly, since plaintiff furnished a full and complete explanation of the occurrence the instant case is not a proper one for the application of the res ipsa loquitur doctrine.
Towards the conclusion of the trial counsel for plaintiff requested the court to allow the jury to view the premises and the bleachers from which plaintiff had fallen. Plaintiff's request was denied by the court on the dual bases that the photographs introduced into evidence adequately depicted the scene of the accident and that one of the jurors who had injured herself during the course of trial would have difficulty climbing the bleacher stairs to view the actual scene of the accident. Plaintiff now contends that the trial court abused its discretion in refusing to allow the jury to view the scene of the accident. We cannot agree with plaintiff's contention in this regard. Although Code of Civil Procedure (section 610, authorizes a jury view of the premises or property which is the subject of a particular litigation,15 it has been held in California that a trial court may exercise discretion in determining whether to grant a request for a jury view of the premises. (Nunneley v. Edgar Hotel, supra, 36 Cal.2d 493, 501–502, 225 P.2d 497; Kraus v. Walt Disney Productions, 221 Cal.App.2d 736, 740, 34 Cal.rptr. 702; City of Riverside v. Kraft, 203 Cal.App.2d 300, 301, 21 Cal.Rptr. 425.) In the present case since the trial court's denial of plaintiff's request for a jury view of the accident scene was based upon two valid grounds we cannot say that the court abused its discretion in refusing to allow the jury to view the bleachers.
The judgment is reversed.
1. Prior to trial plaintiff waived his claim for special damages; and the various affirmative defenses raised by defendants, namely, contributory negligence on the part of plaintiff and contributory negligence and assumption of risk on the part of plaintiff's parents, were removed from the case, leaving as issues defendants' negligence, proximate cause, and general damages.
2. Unless otherwise indicated all statutory references appearing under this heading are to the Government Code.
3. This act was based on the Public Liability Act of 1923 (Stats.1923, ch. 328, p. 675), which it superseded without substantial charge. (For a comparison of the provisions of the 1923 act and the act as provided in the Gov.Code see Lehmann v. Los Angeles City Board of Education, 154 Cal.App.2d 256, 262–263, 316 P.2d 551.)
4. It should be noted that public entities may also be liable as required by the State or Federal Constitution, e.g., inverse condemnation. (See comment § 815.)
5. The Tort Claims Act gives statutory approval to the rule abrogating sovereign immunity declared in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (Flournoy v. State of California, supra, 230 Cal.App.2d p. 526, 41 Cal.Rptr. 190.)
6. Section 4 of Statutes 1961, chapter 1404, effective September 15, 1961, expressly provided that after the expiration of the moratorium period all actions brought or maintained on causes of action arising between February 27, 1961 (the date Muskopf became final) and the 91st day after the final adjournment of the 1963 regular session of the Legislature could only be maintained if, among other things, they were not barred “by any other provisions of law enacted subsequent to the enactment of this act,” thus effectively causing the state of the law between the date on which Muskopf became final and the envisioned future legislation to be inchoate and further causing such causes of action to be subject to immunities to be created. (Ne Casek v. City of Los Angeles, 233 Cal.App.2d 131, 142, 43 Cal.Rptr. 294, see Van Alstyne, Governmental Tort Liability, 15 Stan.L.Rev. 163, 236.)
7. We note that in Lehmann v. Los Angeles City Board of Education, 154 Cal.App.2d 256, 316 P.2d 55, and in Lehmuth v. Long Beach Unified Sch. Dist., 53 Cal.2d 544, 552–553, 2 Cal.Rptr. 279, 348 P.2d 887, the rebuttable presumption arising from violations of statute was held to be applicable to a public entity. However, in each of those cases the public entity was a school district whose liability in addition to that provided for in the Public Liability Act, was predicated on general negligence by virtue of a particular statute, i.e., section 1007 of the Education Code.
8. The jury was instructed that as a matter of law plaintiff was an invitee at the time of the accident.
9. Plaintiff proffered certified copies of the building codes and of the city and county ordinances adopting these building codes. As to the safety orders and other administrative regulations, it is established that courts may take judicial notice thereof. (Armenta v. Churchill, 42 Cal.2d 448, 455, 267 P.2d 303.)
10. The General Safety Orders which plaintiff requested as instructions establishing defendants' standard of care and the contents thereof are as follows: Sec. 3211 defines a floor hole as an “opening in a floor or platform which is smaller than a floor opening as defined in 3212”; sec. 3212 defines a floor opening as an opening in a floor or platform which is 12 inches or more in the least horizontal dimension; sec. 3215 defines a platform as “an elevated working level for persons”; secs. 3219 and 3221, respectively, define a standard railing and a standard toeboard; sec. 3225 specifies the type of railings and toeboards which must be utilized where railing protection or standard toeboards are required; sec. 3237 prescribes a width minimum of two feet for platforms and other working areas which are elevated four feet or more above the ground (subd. a), sets forth the requirement that such platforms shall be guarded by a railing on all open sides and that such railings shall be provided with a toeboard where the platform is six feet or more above places where employees may pass (subd. b), and provides that “Where the type of process or operation (exclusive of repair and maintenance) is such that there are hazards to employees of materials falling through openings, platforms or runways, the openings shall be limited to such size as will prevent materials falling through the openings” (subd. c.); see, 3238 specifies that wall openings shall be guarded by a standard railing; and finally sec. 3239 sets forth the requirement that every permanent floor opening be guarded by a cover, standard railing, or equivalent on all open sides and that toeboards be installed around the edges of permanent floor openings where persons may pass below the opening.
11. Section 3 and 4 (now renumbered 1.03 and 1.04) provided that the regulations were adopted for the purpose of establishing minimum standards for the prevention of fire and for the protection of life against fire and panic in any auditorium, fair building or similar places of assemblage where 50 or more persons may gather for the purpose of amusement and entertainment.Section 269, which was in effect at the time of plaintiff's accident but was subsequently repealed, provided in subdivision (h) that “Where the back of a bleacher section is not placed against a wall, a railing shall be provided at the back of the section.” Section 33.15, which was enacted in May 1963, approximately one year after plaintiff's accident, refers for requirements pertaining to bleachers to article 57 of the regulations, which in section 57.16 thereof requires rear guardrails not less than 42 inches above the rear seat board where rear seat boards are located more than four feet above the adjacent grade and further provides that “(c) A midrail shall be placed adjacent to any seat to limit the open distance above the top of any part of a seat to ten inches (10″) where the seat is at the extreme end or at the extreme rear of the bleachers of grandstand” when stands are not placed directly against a wall or fence so as to give “equivalent protection.” (Subd. d.)
12. This instruction reads as follows: “The mere fact that an accident happened, considered alone, does not prove that it was caused by the negligence of anyone.”
13. With respect to the meaning of “dangerous and defective condition” we point out that “It is the fact that a condition involves an unreasonable risk of injury to the public that renders it a dangerous or defective condition within the meaning of the Public Liability Act [citation], and each case must be determined upon its own peculiar facts.” (Hawk v. City of Newport Beach, 46 Cal.2d 213, 217, 293 P.2d 48, 50.) We also point out that section 830 of the Tort Claims Act defines a “ ‘Dangerous condition’ ” and that in the opinion of the Law Revision Commission this definition does not change the preexisting law relating to cities, counties and school districts. (See comment to § 830; see BAJI Instruction No. 219H (Revised).)
14. These instructions were as follows:“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. It is the efficient cause—the one that necessarily sets in operation the factors that accomplish the injury. (It may operate directly or through intermediate agencies or through conditions created by such agencies.)”“Liability in law attaches only to the proximate cause of injury. Although many circumstances leading up to and surrounding an accident may be linked to it in a chain of causation, so that we may say that the accident would not have happened without them, the proximate cause consists only of the factor or combination of factors that compels the injurious result.“The word ‘proximate ’ means ‘near’; and any particular conduct, to be a proximate cause of injury, must be effective as a cause at the time the injury is inflicted, and in one of three ways: It must immediately precede and lead into the injury, or, if the conduct began or was done at a prior time, either it or a condition created by it must continue to the time of injury.''“This does not mean that the law seeks and recognizes only one proximate cause of an injury, consisting of only one factor, one act, one element of circumstance, or the conduct of only one person. To the contrary, the acts and omissions of two or more persons may work concurrently as the efficient cause of an injury, and in such a case, each of the participating acts or omissions is regarded in law as a proximate cause.“To give rise to liability however, any such proximate cause must have consisted of negligent conduct.”
15. This section provides in relevant part as follows: “When, in the opinion of the Court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the Court for that purpose. * * * ”
MOLINARI, Acting Presiding Justice.
SIMS, J., concurs. Hearing ordered; SULLIVAN, J., not participating.