Whiting v. City of National City

California Supreme Court Jun 29, 1937 No. L. A. 16167Published

Before: Shenk

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Holding. The court held that a minor sidewalk defect, such as a slight rise in a cement square, does not impose liability on a municipality under the statute of 1923 because the city lacks constructive notice of the defect's dangerous character.

Issues

Whether a minor sidewalk defect constitutes a dangerously defective condition sufficient to impose liability on a municipality under the statute of 1923.
Whether constructive notice of a minor sidewalk defect is sufficient to establish municipal liability without notice of its dangerous character.

Disposition. reversed

Quotations verified verbatim against the opinion

“From the record herein it must be concluded that the defect in the sidewalk in question was a minor defect; that no injury would ordinarily be suffered therefrom when ordinary care was exercised in using the sidewalk.”

“The city is not an insurer of its public ways and is not bound to keep them so as to preclude the possibility of injury or accident therefrom.”

“There is here present no element of conspicuousness or notoriety showing any dangerous character in the slight rise of a portion of a sidewalk, which would put the city authorities upon inquiry”

SHENK, J.

The plaintiff sued the city of National City to recover damages for injuries occasioned by a fall when she caught the toe of her shoe in the upraised edge of a cement square in the sidewalk of Ninth Street in said city. The case was tried without a jury, and judgment entered for the plaintiff in the sum of $2,000. The city appealed.

The portion of the sidewalk involved was in a much traveled business district of the city. The court found that the sidewalk was constructed of contiguous cement squares with expansion joints between them; that the square upon which the plaintiff tripped was raised at its easterly edge above the square next adjoining it on the east; that at the highest point of such rise it was about three-quarters of an inch above the surface of the adjoining square and that the rise extended for several feet to the north gradually lessening in height until the surface was approximately level. The court found further that the foregoing condition of the sidewalk had remained unchanged for about six years prior to the time when the plaintiff tripped on it; and that it constituted an unsafe and defective condition in the sidewalk. It also found that during five years preceding the accident, four people had stumbled over the defective area, three of whom had fallen, and that the mayor and several members of the city council, the street commissioner, and two succeeding superintendents of streets of the city had walked frequently over that portion of the sidewalk. It found that the defendant had constructive knowledge and notice of .the defective condition of the sidewalk and failed for a reasonable period to remedy the defect; that the defendant was negligent and that its negligence was the sole proximate cause of the plaintiff’s injuries.

The city contends that the evidence, even including the personal view of the premises by the court, is insufficient to

[165]

support the finding that the sidewalk was dangerously defective so as to impose liability upon the defendant within the meaning of the statute of 1923, page 675; and that pursuant to the recent case of

Nicholson

City of Los Angeles,

Whiting v. City of National City

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SHENK, J.

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