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


Civ. 11073.

Decided: September 11, 1936

Hansen & Sweeney and E. D. Yeomans, all of Los Angeles, for appellant. Ray L. Chesebro, City Atty., F. Von Schrader, Asst. City Atty., and Bourke Jones, Deputy City Atty., all of Los Angeles, for respondent.

This is an appeal from a judgment entered upon an order sustaining a demurrer without leave to amend. The amended complaint in this case is predicated upon section 2, Statutes of 1923, p. 675 (Deering's Gen.Laws 1931, Act 5619), which provides: “Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.”

Briefly, the facts alleged in the first cause of action of said amended complaint are that on May 7, 1935, Daniel, aged 11, a son of plaintiff, was attracted to a pool of water on property belonging to respondent city, accepted an implied invitation to play thereon, and was drowned as a direct consequence of a defective and dangerous condition existing in said pool of water, known to respondent and unknown to Daniel. The pool was formed as the result of the maintenance of a storm drain by respondent. With regard to the pool and its formation, its maintenance and its use, it is alleged that for more than ten years, defendant owned and maintained a storm drain, which ran from a covered conduit under a public highway into an open storm drain ditch; that a drop of several feet from the covered conduit into the open storm drain ditch caused a deep hole to form; that the banks of the open storm drain were unprotected; and over a period of years this caving–in clogged up the storm drain so that a large pool was formed, which covered the deep hole; that the pool was surrounded by a sandy beach, and was adjoining the public highway, and easily accessible thereto by a pathway; that the deep hole in this pool was completely concealed by the muddy condition of the water in the pool; that this pool was located in a populated neighborhood in which several hundred children resided; that a raft and numerous boards were on the surface of this pool; that children regularly used this pool for a playground, and waded in the pool and used the raft that was kept thereon; that the children had no knowledge, nor reasonable means of knowledge, of the deep hole in this pool; that all these conditions had existed for more, than two years to the actual notice and knowledge of the boards, officers, and agents of the defendant having the authority to remedy these dangerous and defective conditions, but the same were not remedied and no warnings were given or posted and no guards or protections of any nature whatever were furnished; and that these conditions could have been removed at a nominal cost to defendant without in any manner impairing the usefulness of the storm drain.

Specifically, with regard to the drowning of Daniel, it is alleged that while using the raft in the pool, which was, except for the deep hole referred to, of shallow depth, Daniel, unaware of the deep hole, fell into it and was drowned. With reference to the character and formation of the pool, the complaint specifically alleges: “* * * said pool so formed was about forty–five (45) feet wide and about sixty (60) feet long; that the water in said pool was very muddy and was so cloudy and opaque that it was not at all transparent, and the depth of the water in said pool, or any part thereof, could not be determined by looking into said pool; that all of the water in said pool was between one and two feet deep with the exception of the depth of the water in the hereinafter described pit, trap, or hole; that at one place in said pool there was a deep pit, trap, or hole which was over seven (7) feet in depth and with a circular diameter at the top thereof of approximately ten (10) feet, said deep pit, trap, or hole being just south of where said covered storm drain conduit emptied into said open storm drain ditch; that said deep pit, trap, or hole was caused, formed and constructed by said water flowing from said covered storm drain conduit, and dropping said one to two and one–half feet into said open storm drain ditch; that on said pool there floated numerous boards, poles, stakes, and a raft which had been constructed by several boards bound together and said raft was about five feet long and about two and one–half feet wide; that there was a pathway running from the south side of said Pico boulevard down the slope of the open storm drain ditch to the side of the pool; that said pool was easily accessible from said Pico boulevard by using said path; that around said pool there was a sandy beach ranging between ten and fifteen feet wide; that there was no guard, fence, covering, protection, or warning around said pool, around said storm drain ditch, or near said pool or storm drain ditch; that all the foregoing conditions, except where expressly stated to be otherwise, existed on the 7th day of May, 1935, and had existed for more than two years prior thereto; * * *”

The second cause of action alleges that Ralph, aged 13, brother of Daniel, hearing Daniel's cries for help, rushed into the pool and was drowned in the attempt to save his brother's life.

The statute in question, which changed the rule of nonliability of governmental agencies, was passed in 1923. The intent and theory thereof, and the guides to its interpretation, have been set forth in a great number of cases, which are collected in Beeson v. City of Los Angeles, 115 Cal.App. 122, 131, 300 P. 993, and Watson v. City of Alameda, 219 Cal. 331, 26 P.(2d) 286. In the latter case, the court says, 219 Cal. 331, at page 333, 26 P. (2d) 286, 287: “But any such modification of the rule of nonliability for acts performed in a governmental capacity must come from the Legislature, and the Legislature has, in the act of 1923, set forth the extent of its departure from the former rule. The municipality is not, under this statute, liable in the same manner as a private corporation, for negligence of its employees; nor is it enough to show a dangerous condition of property. The municipality must have had notice and have failed to exercise its opportunity to remedy the condition. The theory of the act seems to be that liability is imposed not alone for the dangerous condition, but for the failure to remedy it, upon knowledge or notice thereof. The elements of knowledge or notice are logically essential to show culpability in failure to remedy the condition, and proof of one or the other is necessary to recovery.” (Italics ours.)

The complaint indisputably alleges a dangerous and defective condition. It alleges that the deaths were caused by this condition, and such allegation may be considered as an additional fact indicating that it was a dangerous and defective condition. Adams v. Southern Pacific Co., 4 Cal.(2d) 731, 741, 53 P.(2d) 121. Unless it can be said as a matter of law that there were no allegations of such a condition, whether or not the condition is dangerous or defective is a question of fact. Hook v. City of Sacramento, 118 Cal.App. 547, 5 P.(2d) 643; Barrett v. City of Sacramento, 128 Cal.App. 708, 18 P.(2d) 356.

From what has been detailed, it is clear that the order sustaining the demurrer without leave to amend could not have been made on the ground that the dangerous and defective condition set forth in the amended complaint was not properly alleged. No point is made that the amended complaint is technically defective. The primary question presented by respondent is: Conceding the dangerous and defective condition, there is no responsibility upon the part of respondent city, upon direct authority. Beeson v. City of Los Angeles, 115 Cal.App. 122, 300 P. 993.

Respondent claims that the case of Beeson v. City of Los Angeles, supra, is decisive of this case. On the facts the Beeson Case is substantially on all fours with the instant case. The Beeson Case was undoubtedly decided on the theory that the pool there involved was not an attractive nuisance, which is also one of the contentions of respondent in this case. In that case, as in this, a demurrer was sustained without leave to amend. The appellate court sustained the trial court's ruling, and said, 115 Cal.App. 122, at page 128, 300 P. 993, 996:

“In the instant case the pool was not a contrivance or an appliance created by an act of the owner of the property. It was caused either by the water falling into the drainage ditch from the cement drain or by the banks of the ditch caving in and forming a dam, probably by both.

“It has been repeatedly held in California that a pond, excavation, or pool of water is not an attractive nuisance under the definition of the term adopted here. Loftus v. Dehail, 133 Cal. 214, 65 P. 379, Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am.St.Rep. 106, and Polk v. Laurel Hill Cemetery Ass'n, 37 Cal.App. 624, 174 P. 414, 418. In the last case the court said: ‘A pond of water, it may be conceded, is always attractive to youngsters; but the dangers connected with and inherent in a lake or pond of water, natural or artificial, are obvious to everybody––even to a child old enough to be permitted by its parents to go about and play unattended upon the streets or in the public parks. It would not conform to the dictates of common reason to say that a child of the age of eight years, or even much younger, does not know and fully realize that a fall into a pond of water or a deep reservoir would result in injury to him, if not in his death. But there is no necessity for abstract reasoning upon the proposition, for we think it thoroughly settled by the decisions that a pond of water, whether natural or artificial, is not to be included in the same class with turn–tables and other complicated machinery, the inherent dangers of which are not obvious to a child.”’

We recognize that a hearing was denied by the Supreme Court in the Beeson Case, and that in the case of Douglass v. City of Los Angeles, 53 P.(2d) 353, 359, the Supreme Court, referring to the second point upon which the Beeson Case was decided, said: “What was said in the opinion with reference to the necessity of filing a claim with the board of public works was unnecessary to the decision and cannot be deemed an authoritative pronouncement on the subject.” In spite of this history of the Beeson Case, we feel that it is not decisive of this case. In our opinion, the case of Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515, 271 P. 1060, which, like the Beeson Case, presents a parallel factual situation, and which was directly ruled upon by the Supreme Court, is decisive of this case, unless it can be considered that the Beeson Case, by reason of its history, overrules the Sanchez Case. We do not think it does.

In the Sanchez Case plaintiff sued for the death of his minor son caused by drowning in an irrigation ditch and recovered a judgment. The facts, as summarized by the court at page 516 of 205 Cal., 271 P. 1060, 1061, are as follows: “The defendant owned certain irrigation canals and ditches in Contra Costa county. One of its canals was approximately 10 miles long, and crossed under various roads. In one place it was necessary for this canal to cross a wide arroyo or stream known as Marsh creek. To cross this creek it was necessary to construct a syphon from the canal on the one side of the creek to the canal on the other side. This syphon ran from the bottom of the irrigation main canal downward under Marsh creek and came up into the irrigation main canal upon the other side of Marsh creek. The opening of this syphon in the end of the canal was four feet in diameter, and was unguarded. The defendant company had constructed, within a short distance of the place of the accident, several small houses in which employees of the company, with their families, resided. The roadway leading to these houses ran alongside the side of the canal and along the edge of Marsh creek; there being nothing but the thickness of a low concrete bulkhead between the canal and the road. The plaintiff was an employee of the company, and lived in one of the said houses with his wife and children. His five year old son, who was drowned, had been playing with other children at the edge of the canal, and attempted to wet his handkerchief in its waters to wipe some blood from an injury he had sustained. He fell into the main canal, which, at the time of the accident, was filled with about 3 feet of water, and then, evidently, slipped into the syphon at the bottom of this 3 feet of water. The water in the canal was muddy, and the opening of the syphon could not be seen. The body of the child was recovered from a place some 15 feet down in the syphon. There was no sign of warning to notify passers–by of the presence of this large syphon.”

The court in the Sanchez Case concedes the general rule that “defendant need not have guarded against this open and obvious stream of water, under numerous California decisions.” It points out, “However, this case involves a situation where the defendant has placed upon its property an artificial peril, a concealed danger, without warning to those who were invited by defendant to live closeby.” It then goes on to say: “In the instant case, the canal with its shallow water was the bait of the trap. The defendant knew that children lived close by, and the opening to the syphon might have been easily guarded. It is a matter of common knowledge that children playing on the edge of a shallow body of water will be tempted to play in the water and to reach into it, and, while defendant need not have guarded against this open and obvious stream of water, under numerous California decisions, we think a different rule applies where an apparently harmless, shallow stream of water contains a large opening into which anyone might slip, which opening is wholly unguarded and completely concealed from view. If the children had gone swimming in this canal and had slipped into the syphon, a similar legal situation would have been presented. The children assumed the risk of the open, obvious, notorious danger incident to the canal, containing about 3 feet of water; but they did not assume the risk of an unknown, concealed, and unguarded danger. The exception to the general rule, under which exception the present case falls, is discussed in the following cases: Bjork v. City of Tacoma, 76 Wash. 225, 135 P. 1005, 48 L.R.A.(N.S.) 331; Cœur d'Alene Lumber Co. v. Thompson, 215 F. 8, L.R.A. 1915A, 731 [131 C.C.A. 316]; City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155, 58 Am.Rep. 65; Indianapolis v. Williams, 58 Ind.App. 447, 108 N.E. 387; Loftus v. Dehail, 133 Cal. 214, 65 P. 379; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am.St.Rep. 106; Loveland v. Gardner, 79 Cal. 317, 21 P. 766, 4 L.R.A. 395; Malloy v. Hibernia Sav. & L. Soc., 3 Cal.Unrep. 76, 21 P. 525.” (Italics ours.)

It is true that in the Sanchez Case both the irrigation ditch and the syphon were contrivances created by the direct act of the owner of the property. In our opinion, it is equally true that in the instant case the pool and the deep hole in its center were created by respondent. In one case the creation was direct and studied; in the other, indirect and perhaps inadvertent, but, nevertheless, an inevitable consequence of the manner in which the drain was constructed. Given geological conditions such as obtain in the instant case, it follows as night follows day that a storm drain constructed as is alleged will form a pool; and it follows just as inevitably that if some of the ground over which the pool forms is more soft or porous in relation to the contiguous earth, it will give way and disintegrate more rapidly, thus creating greater depth. It is idle to say that “the pool was not a contrivance or an appliance created by an act of the owner of the property.” Beeson v. City of Los Angeles, supra. The physical inescapable fact is that a storm drain constructed as was the one in the instant case will form a pool under the conditions alleged, and that such a pool would not have been formed if the covered conduit had been connected with the open storm drain in a more workmanlike manner. The demonstrable physical evidence is that the pool in this case was a contrivance or an appliance directly resulting from the act of the owner of the storm drain.

In the Sanchez Case there is no contention that the syphon there present, as distinguished from the hole in the instant case, caused any suction or sucked the minor child under. On the contrary, it is directly stated in the Sanchez Case that the minor “slipped into the syphon.” Such being the declared fact, we see no practical or metaphysical distinction between a syphon which has a depth of fifteen feet and a hole which has a depth of seven. Both the syphon and the hole were adequate in their capacity for destruction. Both were within the classification made in the Sanchez Case of “an artificial peril, a concealed danger, without warning to those who were invited by defendant to live close by.”

In the instant case, as in the Sanchez Case, the “shallow water was the bait of the trap.” In fact, the court in the Sanchez Case deliberately says: “If the children had gone swimming in this canal and had slipped into the syphon, a similar legal situation would have been presented.” This statement mathematically fits the facts in the instant case. We feel, moreover, that the instant situation is stronger on the facts, and therefore lends itself more readily to the application of the principles enunciated in the Sanchez Case, than do the facts in the Sanchez Case. In the Sanchez Case it does not appear that anyone ever went swimming, wading, or playing in or near the irrigation ditch. These facts are directly alleged here. In the Sanchez Case there is no evidence of any raft or rafts in the irrigation ditch, which any practical man must know is a Circe–like invitation to little boys to play with and on rafts. These facts are alleged here. There was no sandy beach in the Sanchez Case. It is alleged here that the pool was surrounded by such a beach. In the Sanchez Case the irrigation ditch was located in a rural community and there is no evidence that it was frequented by children. In the instant case the pool was in a thickly populated urban community, clearly visible from a main artery of traffic; and it is directly alleged that it was frequented over a period of two years by many children. Furthermore, knowledge and notice of the pool and the hole therein, together with knowledge and notice of how the pool was being used by youngsters, is directly alleged to have been had by respondent city over a period of two years.

In our opinion, the deceased children were invitees. Sanchez v. East Contra Costa Irr. Co., supra; Magnuson v. City of Stockton, 116 Cal.App. 532, 3 P.(2d) 30; Wheeler v. City of St. Helens (Or.1936) 58 P.(2d) 501.

Respondent was under a duty to warn the children using the pool of all dangers known to itself and to exercise ordinary care and prudence to keep the premises in a reasonably safe condition. 13 Cal.Law Rev. 72, 75.

Our remarks thus far have been addressed to the allegations of the first cause of action. We are of the opinion that they state a cause of action. The second cause of action has to do with the thirteen year old son who rushed into the pool to save his eleven year old brother. Since the second cause of action amply alleges facts charging that the same defective and dangerous condition which caused the death of Daniel also caused the death of Ralph, who was the rescuer, it likewise states a cause of action. Henshaw v. Belyea, 220 Cal. 458, 461, 31 P.(2d) 348; Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1; McClure v. Southern Pacific Co., 41 Cal.App. 652, 183 P. 248; Pierce v. United Gas & Elec. Co., 161 Cal. 176, 118 P. 700. In the Wagner Case the court said: “Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. * * * The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”

The amended complaint in each cause of action thereof states a cause of action. The demurrer thereto should have been overruled. The judgment entered upon the order sustaining the demurrer without leave to amend is reversed, with directions to the trial court to allow defendant a reasonable time to answer the amended complaint.

ROTH, Justice pro tem.

We concur: HOUSER, P. J.; DORAN, J.

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Docket No: Civ. 11073.

Decided: September 11, 1936

Court: District Court of Appeal, Second District, Division 1, California.

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