Opinion
8-11-1955
Montie HAWK, and David Hawk, by and through his guardian ad litem Montie Hawk, Appellants and Cross-Respondents, v. CITY OF NEWPORT BEACH, a Municipal Corporation, Respondent and Cross-Appellant. Civ. 5044.
Paul T. Erskine, Alhambra, W. J. Schall, San Diego, for appellants and cross-respondents. Z. B. West, Santa Ana, Belcher, Kearney & Fargo, Los Angeles, for respondent and cross-appellant.
Montie HAWK, and David Hawk, by and through his guardian ad litem Montie Hawk, Appellants and Cross-Respondents,
v.
CITY OF NEWPORT BEACH, a Municipal Corporation, Respondent and Cross-Appellant.
Aug. 11, 1955.
Rehearing Denied Aug. 30, 1955.
Hearing Granted Oct. 5, 1955. *
Paul T. Erskine, Alhambra, W. J. Schall, San Diego, for appellants and cross-respondents.
Z. B. West, Santa Ana, Belcher, Kearney & Fargo, Los Angeles, for respondent and cross-appellant.
BARNARD, Presiding Justice.
This is an action for damages based upon the provisions of the Public Liability Act, Gov.Code, Secs. 53050 et seq. The defendant city owned, maintained and operated an area known as a 'Beach Park', to which the public was invited for various forms of amusement, including bathing purposes. Because the exhibits were not brought to this court it is difficult to understand the detailed description of this area contained in one brief, with its many references to aerial photographs and maps which were used at the trial. It sufficiently appears, however, that within this area there was a large sandy beach fronting on the Pacific Ocean, and also a semi-circular cove separated from the main beach by a large 'camel-back' rock. Several paths led from the main beach over the camel-back rock to the cove. A large rock stood out in the waters of the cove some 180 to 200 feet from the shore, with a series of smaller rocks standing out between it and the shore. The top of this large rock was about eight feet above the surface of the water. The minor plaintiff was injured when he dove off this large rock into water which was only about four feet deep.
The accident happened about noon on September 1, 1952. This was Labor Day and there were about 4000 people on the main beach and from 150 to 200 in the cove area, some of whom were engaged in swimming. The minor plaintiff had been swimming in the main beach area, and he and a friend crossed the camel-back rock to the cove area. His friend remained on the shore while he waded out to the large rock, through water which came about to his waist at the deepest point. He saw another boy, 18 or 19 years old, walking out through the water to this rock and followed him. He climbed up on the rock and, standing beside him, watched the other boy dive into the water. The other boy rose to the surface and swam away. The minor plaintiff then dove in and, apparently, struck the bottom. He received the severe injuries here in question. There was no material conflict in the evidence, and no witnesses were called by the defendant. There was nothing in the way of signs or barriers, or warning devices of any kind, to warn against the use of this rock for diving purposes, and there were no lifeguards in that vicinity. There were lifeguards on the main beach, but they could not see what was going on in the cove area because of the intervening obstruction.
Among other things, the captain of the lifeguards, employed by the defendant, testified that on that day he had two lifeguards assigned to the main beach area, and three 'roving lifeguards' who patrolled certain areas by truck; that he knew that patrons of the beach sometimes used this rock for diving purposes; that he himself had used it for diving purposes quite frequently during his teen-age years; that conditions had changed since he had used the rock for diving purposes, because part of the sandy bottom around the rock had shallowed quite considerably; that his lifeguards had reported to him about once a week over several years that patrons at the beach were diving from this rock; that in June, 1952, he instructed his roving lifeguards, while making their rounds, to stop and walk over to where they could see this rock, and if they observed anyone about to use that rock for diving purposes to warn that person against such use; that these roving lifeguards would be there only from two to four times a day, and would spend about five minutes each time; and that outside of that possible 20 minutes a day no one was assigned to warn patrons against the use of that rock for diving purposes.
The minor plaintiff testified that he lived in Rosemead and was 17 years old at the time; that he had never been at this beach before but had seen it from across the channel, and on two occasions had seen young people diving off the cove rocks; that on this occasion he drove around until he saw the signs directing him to the beach park; that after parking his automobile in the parking area, for which he paid 50cents, he got in his bathing suit and went swimming on the main beach side; that while he and his friend were walking along he saw 'all the kids over there swimming and diving' over on the cove side and saw the rocks there, 'so I thought that would be a good place to try my diving'; that when he got to the cove area he saw another boy about 18 or 19 years old walking through the water out to this rock and followed him; that this rock was out in open water and the farthest one out; that he climbed up this rock behind the other boy and stood behind him while that boy dived; that the other boy came up right away and started to swim away from the rock; that after the other boy started to swim he dove, and was going to follow the other boy; that he dove into the water in a direction which would take him across the open or water side of the cove; that he dove into the water at a point about two feet from where the other boy had dived into it; that the next thing he could remember was when his friend was pulling him to the shore; that he did not ask anyone how deep the water was where he made his dive; that except for what he learned from wading out and watching the other boy dive he did not know how deep the water was at that place; and that the water was not clear and he could not see the bottom when he dived.
At the conclusion of plaintiffs' case the defendant moved for a directed verdict, which was denied. A jury returned a verdict for $97,000 in favor of the minor plaintiff, and for $2,303.26 in favor of his father, who sought recovery for medical expenses. The defendant then moved for a judgment notwithstanding the verdict, which was denied. A judgment was entered and the defendant moved for a new trial on several grounds, including the insufficiency of the evidence to justify the verdict. The court granted the motion for a new trial 'upon the grounds set forth in the Notice of Motion and particularly upon the insufficiency of the evidence to justify the verdict.' The plaintiffs have appealed from the order granting a new trial to defendant, and the defendant has appealed from the judgment and from the order denying its motion for judgment notwithstanding the verdict.
The plaintiffs contend that the question as to whether the circumstances of this case disclose a dangerous or defective condition of public property within the meaning of the Public Liability Act, and the question as to whether the minor plaintiff was guilty of contributory negligence, were questions of fact for the jury and not of law for the court; and that the court abused its discretion in ordering a new trial. While conceding that the granting of a new trial will not be distrubed on appeal where the evidence is conflicting, it is argued that the power of a court to grant a new trial is limited, by the right of litigants to have questions of fact determined by a jury to cases where an appreciable conflict exists in the evidence; that there was no conflict in the evidence here; and that the record demonstrates that the trial court, in granting a new trial, was not weighing the evidence but was holding, as a matter of law, that no dangerous condition existed within the meaning of the Public Liability Act and that the minor plaintiff was guilty of contributory negligence.
The defendant contends that it appears, as a matter of law, that the city is not liable under the Public Liability Act; that the evidence discloses as a matter of law that the minor plaintiff was guilty of contributory negligence; and that the granting of a new trial was within the discretion of the trial court, since it was free to draw a different conclusion from the evidence than that drawn by the jury, and had the duty to do so if convinced that the verdict was contrary to his view of the evidence. On its own appeal, the defendant contends that the evidence establishes as a matter of law that no cause of action was presented against the city under the Public Liability Act, and that the minor plaintiff was guilty of contributory negligence and assumed such risk of injury as was necessarily involved in his activity. It is, therefore, argued that the order denying the motion notwithstanding the verdict should be reversed and judgment ordered in favor of the defendant. In support of the first point, that there was no liability under the Public Liability Act, it is argued that no natural condition had been changed by the city; that while natural conditions may impose liability on a city under some circumstances, these must be such as to contain an unreasonable risk to one making an ordinary and proper use of such natural condition; that no such unreasonable risk here appears; and that the natural condition existing here was one which the city was not required to warn or guard against since there are countless places in a state of nature on the lakes, rivers and coast line of this state where venturesome persons may dive into the water, and which any public authority would be powerless to warn against or prevent.
On the appeal from the order granting a new trial, we are in accord with the plaintiffs' contention that the issue as to whether there here existed a dangerous condition of public property within the meaning of the Public Liability Act, and the issue of contributory negligence, were questions of fact and not of law. With respect to the first of these issues, the evidence would support the conclusion that a dangerous condition existed in an area owned and maintained by the city for beach park purposes, and to which large numbers of people were encouraged to come for swimming purposes; that this dangerous condition was well known to the city and its agents; that after knowing of the danger the city's agents recognized the need for warning its patrons in that regard; that the means adopted to that end were entirely inadequate, in view of the condition known to exist; and that this condition was one involving an unreasonable risk to anyone attempting to make an ordinary and proper use of it, who was without knowledge of the actual danger. The fact that the natural conditions involved had not been changed by the city is not controlling. In Smith v. County of San Mateo, 62 Cal.App.2d 122, 144 P.2d 33, 38, the court said: '[T]he liability imposed by our statute is not limited to conditions 'artifically made by the hand of man.'' In Bauman v. San Francisco, 42 Cal.App.2d 144, 108 P.2d 989, 995, involving the use and manner of operation of a public playground, the court said: 'There can be no doubt that a dangerous or defective condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect.' And, also, 'It is also well-settled that as a general rule it is a question of fact for the jury to determine whether a given set of facts or circumstances creates a dangerous or defective condition.' Similar principles were applied in Wexler v. City of Los Angeles, 110 Cal.App.2d 740, 243 P.2d 868. In our opinion, the question as to whether the circumstances of this case disclosed a dangerous or defective condition of public property, within the meaning of the Public Liability Act, was clearly one of fact and not one of law.
With respect to the issue of contributory negligence, the minor plaintiff, a youth of 17 years, was in a supervised recreational area where he had never been before; he had previously, from across the channel, seen persons diving off this rock; he entered the water at the shoreline and waded gradually into deepening water, which was up to his waist before he reached the large rock; he saw other swimmers in the cove closer to the shore than was the rock; he followed an older youth onto the rock and watched him as he dove safely; and he than tried to do the same thing in the same place. The facts that he was accustomed to swimming and diving, that he knew of the presence of the rock and its height from the surface of the water, and that he made no inquiry as to the exact depth of the water at the point where he intended to dive, merely present conflicts in the evidence and are not controlling as a matter of law. The question of contributory negligence was one of fact for the court and jury. The fact that there was no material conflict in the evidence is not controlling. In passing upon a motion for a new trial a judge must weigh the evidence and pass upon any existing conflict, and he may also draw conclusions from the evidence which are contrary to those drawn by the jury. Estate of Green, 25 Cal.2d 535, 154 P.2d 692, 696. As was said in that case, quoting from Hames v. Rust, 14 Cal.2d 119, 92 P.2d 1010: "When the motion is granted, as here, for insufficiency of the evidence, it is only in rare cases showing abuse of discretion that an appellate court will interfere because the trial judge must weigh all the evidence and determine the just conclusion to be drawn therefrom. [Citing cases.] It cannot be held that a trial court has abused its discretion where there is a conflict in the evidence of where there is any evidence which would support a judgment in favor of the moving party." (Emphasis ours.)
The record does not support the plaintiffs' final contention that, although the evidence discloses that these two main issues presented questions of fact which the court was empowered to pass upon, the court granted a new trial not as a result of weighing the evidence with the reasonable inferences therefrom, but as a result of concluding, as a matter of law, that the plaintiffs were not entitled to recover. The court granted the motion for a new trial 'particularly' upon the insufficiency of the evidence, and shortly prior thereto it had twice refused to sustain the contention that the main issues presented questions of law rather than of fact, by denying the motions for a directed verdict and for a judgment notwithstanding the verdict.
In view of our holding on the two controlling issues, as to liability and as to contributory negligence, the defendant's appeal from the order denying a judgment notwithstanding the verdict cannot be upheld. The defendant's appeal from the judgment, which was set aside by the order granting a new trial, was apparently taken as a precautionary measure and should be dismissed.
The orders appealed from are affirmed. The appeal from the judgment is dismissed.
MUSSELL, J., and SHELL, J. pro tem., concur. --------------- * Opinion vacated 293 P.2d 48.