Bettencourt v. State of California

BRAY, J.

Plaintiff’s appeal from a judgment of nonsuit based upon his opening statement raises the question of whether his complaint alleged a cause of action for negligence against defendants.

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The Complaint

The complaint primarily charged the State of California and defendants as officers, agents and employees of the state, with maintaining the Dumbarton Bridge in a dangerous and defective condition in failing to provide adequate lighting and warning devices to warn persons driving their vehicles over the bridge of the elevating of the draw. It alleged all of the conditions required to bring the case within Government Code, section 1953 (dangerous or defective condition of public property). Additionally it alleged that while plaintiff was operating his automobile over the bridge defendants, who were working in the scope of their employment hy the state and in control of the bridge, without any warning or notice to plaintiff and knowing of the defective and dangerous condition aforesaid, raised the center section of the bridge, thereby' causing plaintiff’s automobile to smash into the elevated portion of the bridge roadway; that -thereafter defendants lowered the bridge on the automobile, further smashing said automobile, thereby causing plaintiff serious per

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sonal injuries; that his injuries were caused by the “negligence and carelessness of the defendants . . . and as a direct result of the defective and dangerous condition described.” The complaint alleged the filing and service upon all defendants of the claim required by section 1981, Government Code.

The Opening Statement

Plaintiff stated that he would prove that while he was crossing the bridge defendants (one of whom was toll taker and the other bridge tender) raised the center section of the bridge without warning, causing plaintiff’s car to crash into it; that at the time none of the protective devices such as the barrier, wigwag, etc., which normally were used to give warning of the raising of the bridge, were in operation, which fact was known to defendants. Notwithstanding that fact and without taking any precautions to warn plaintiff, defendants raised the bridge. “The issues raised by the complaint are the negligence of the defendants Berg and Kellett in raising this bridge at a time when they knew these conditions existed, and failing to take proper steps to warn or protect the public, and that that conduct on their part was not the conduct of the ordinarily prudent person and that that conduct was negligent and that that negligence on their part proximately contributed to the injuries received by Mr. Bettencourt.”